State v. Bouvier

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STATE OF CONNECTICUT v. MICHAEL
BRYANT BOUVIER
(AC 42430)
Prescott, Moll and Suarez, Js.

Syllabus

The defendant, who was convicted of operating a motor vehicle while under
the influence of intoxicating liquor and reckless driving, and whose
sentence was enhanced for twice previously having been convicted of
operating a motor vehicle while under the influence of intoxicating
liquor or drugs, appealed to this court. The entirety of the motor vehicle
stop that led to his arrest was recorded by a camera in the arresting
state trooper’s vehicle, although the audio recording was briefly inter-
rupted when the trooper, K, temporarily turned off the microphone on
his uniform, to speak with a second trooper, Q. The defendant claimed
that the trial court improperly denied his motion to suppress certain
statements he made to the police during a postarrest interview, as he
claimed he had not voluntarily, knowingly and intelligently waived his
rights under Miranda v. Arizona (384 U.S. 436), denied his motion to
preclude the testimony of the arresting state troopers as a sanction for
K having turned off his microphone, and sustained the state’s objection
to questions regarding a finding by a hearing officer of the Department
of Motor Vehicles that no probable cause existed to arrest the defen-
dant. Held:
1. The defendant could not prevail on his claim that the trial court erred in
denying his motion to suppress his statements to the police during his
postarrest interview: the court properly determined that the defendant
had been advised of his Miranda rights before he made his statements
in response to police interrogation, the defendant having previously
conceded that he was advised of his rights both while being transported
to the police station and while at the station and the defendant failed
to challenge the first advisement as invalid, thus, the defendant conceded
that he was taken into custody, properly advised of his rights prior
to interrogation, remained silent, and later decided to speak during
interrogation; moreover, the court properly determined that the defen-
dant implicitly had waived his Miranda rights voluntarily, knowingly
and intelligently prior to making statements to the police, as it reasonably
could be inferred that the defendant understood his right to remain
silent, as he did so after K initially advised him of his rights, and, at
the police station, he was again advised of his rights as well as the
consequences of refusing a Breathalyzer test, which he acknowledged;
furthermore, the defendant’s knowledge of his rights from his two prior
arrests further supported the court’s conclusion that he understood
those rights, as did the defendant’s course of conduct in voluntarily
answering multiple questions by the police and declining the opportunity
to contact an attorney after it had been offered to him.
2. The trial court did not abuse its discretion in denying the defendant’s
motion in limine, in which he sought either to preclude the testimony
of K and Q or an instruction permitting the jury to draw an adverse
inference against the state because K intentionally had turned off his
body camera during the traffic stop, as K’s action did not constitute a
failure to preserve evidence or the destruction of evidence: the evidence
before the court showed that K had acted in a manner that failed to
create an audio recording, thus, evidence consisting of such a recording
did not actually exist; moreover, the defendant failed to cite to any
authority demonstrating that the troopers had a legal duty to record their
conversation at the scene of the motor vehicle stop, as the administrative
guidelines cited by the defendant did not create a cognizable due process
interest in the defendant, and the court made no finding that the troopers
actually violated those guidelines.
3. The defendant could not prevail on his claim that the trial court erred in
sustaining the state’s objection to questions defense counsel asked K
regarding a finding by a hearing officer of the Department of Motor
Vehicles that no probable cause existed to arrest the defendant: the
court properly did not admit the hearing officer’s finding of no probable
cause to permit the defendant to impeach the arresting officers’ credibil-
ity as the finding constituted extrinsic evidence, and defense counsel
properly was permitted to, and did, cross-examine the arresting officers
regarding their administration of field sobriety tests; moreover, the
defendant’s unpreserved claim that the hearing officer’s finding was
relevant and admissible to prove that no probable cause existed to arrest
the defendant was not reviewable pursuant to the second prong of State
v. Golding (213 Conn. 233) because the claim was purely evidentiary
in nature and not of constitutional magnitude; furthermore, even if this
court were to reach the merits of the defendant’s claim, the finding, if
offered to prove that there was no probable cause to arrest the defendant,
would be inadmissible, as probable cause to arrest the defendant was
not an element of either of the offenses on which the defendant was
tried, thus, the finding was not material to the jury’s determination of
the case before it.
Argued April 5—officially released December 7, 2021

Procedural History

Two part substitute information charging the defen-
dant, in the first part, with the crimes of operating a
motor vehicle while under the influence of intoxicating
liquor and reckless driving, and, in the second part, with
twice previously having been convicted of operating a
motor vehicle while under the influence of intoxicating
liquor or drugs, brought to the Superior Court in the
judicial district of Hartford, geographical area number
fourteen, where the court, D’Addabbo, J., denied the
defendant’s motion in limine to preclude certain testi-
mony; thereafter, the court denied the defendant’s
motion to suppress certain evidence; subsequently, the
first part of the information was tried to the jury before
D’Addabbo, J.; verdict of guilty; thereafter, the defen-
dant was tried to the court, D’Addabbo, J., on the second
part of the information; finding of guilty; judgment of
guilty, from which the defendant appealed to this court.
Affirmed.
Patrick Tomasiewicz, for the appellant (defendant).
Felicia Valentino, special deputy assistant state’s
attorney, with whom, on the brief, were Sharmese Wal-
cott, state’s attorney, and Denise Smoker and Robert
Diaz, senior assistant state’s attorneys, for the appel-
lee (state).
Opinion

PRESCOTT, J. The defendant, Michael Bryant Bou-
vier, appeals from the judgment of conviction, rendered
following a jury trial, of operating a motor vehicle while
under the influence of alcohol in violation of General
Statutes § 14-227a (a) (1) and reckless driving in viola-
tion of General Statutes § 14-222. He also appeals from
the judgment of conviction, following a trial to the court
on a part B information, of being a third time offender
in violation of § 14-227a (g) (3). The defendant claims
that the trial court improperly (1) denied his motion to
suppress statements he made to the police during a
postarrest interview because he allegedly had failed
to voluntarily, knowingly, and intelligently waive his
Miranda rights1 prior to responding to questioning, (2)
denied his motion in limine that sought to preclude the
testimony of the arresting state troopers as a sanction
for one of the troopers having turned off his body micro-
phone during the motor vehicle stop, and (3) sustained
the state’s objection to questions regarding a finding
made by a Department of Motor Vehicles hearing officer
that no probable cause existed to arrest him. We affirm
the judgment of the court.
The jury reasonably could have found the following
facts. During the early morning hours of June 1, 2017,
Trooper Thomas Krynski of the Connecticut State
Police was on duty patrolling Interstate 84 in the Hart-
ford and West Hartford areas. The roadway was wet
due to rain. At approximately 12:43 a.m., Krynski was
operating his police cruiser near exit 46 when he
observed in his mirror a car approaching in the left
center lane. The car passed Krynski at approximately
eighty miles per hour, far in excess of the fifty mile per
hour speed limit. Krynski followed the car for approxi-
mately three miles, during which time he observed the
driver making lane changes to pass other vehicles with-
out using his turn signal, drifting from one lane to
another, and not staying within a designated lane. When
the car exited the highway at exit 42, Krynski followed
and observed the car fail to stop at the stop sign located
at the end of the exit ramp. At that time, Krynski initi-
ated a traffic stop using his cruiser’s lights and siren.
Krynski approached the driver’s side window of the
car and asked the driver, who was the sole occupant
of the car, for his license, registration, and proof of
insurance. The paperwork identified the driver as the
defendant. Krynski observed that the defendant had
glassy and bloodshot eyes, and he detected an odor of
alcohol coming from the car. Krynski decided to con-
duct a preliminary sobriety test. He asked the defendant
to follow his finger with his eyes and observed that the
defendant’s eyes were ‘‘jerking.’’ He asked the defen-
dant if he had had anything to drink, and the defendant
responded, ‘‘Nothing.’’ He next asked the defendant
to step out of the car so that he could conduct the
preliminary eye test a second time. Krynski again noted
‘‘jerkiness’’ in the defendant’s eyes. When asked, the
defendant stated that he was coming from his girl-
friend’s house in Hartford.
Krynski returned to his cruiser to request back up
so that he could conduct standardized field sobriety
tests. Shortly thereafter, Trooper Michael Quagliaroli
arrived in his cruiser on the scene. Krynski administered
three separate field sobriety tests: the horizontal gaze
nystagmus test, the walk and turn test, and the one leg
stand test. The administration of the sobriety tests was
recorded by the dashboard camera on Krynski’s cruiser,
the audio for which was captured by a microphone
worn by Krynski on his uniform. On the basis of his
observations of the defendant’s performance of the field
sobriety tests, Krynski determined that none was per-
formed to standard.
Krynski then approached Quagliaroli to speak to him.
While doing so, Krynski turned off his body microphone
for less than one minute. During this time, the video
recording nevertheless continued. While the micro-
phone was off, the two troopers discussed whether a
sufficient basis to arrest the defendant existed, as well
as whether they should leave his car on the street or
have it towed. They ultimately concluded that the defen-
dant should be arrested, and they placed him under
arrest and transported him in a cruiser to the police sta-
tion.
During the drive to the police station, Krynski orally
advised the defendant of his Miranda rights. At the
police station, Krynski brought the defendant into the
booking area at which time he again advised the defen-
dant of his Miranda rights, this time reading from a
form. Krynski next explained the Breathalyzer testing
process and the consequences of a refusal and asked
the defendant to submit to a Breathalyzer test. The
defendant refused the test and declined an opportunity
to speak to a lawyer. Krynski called in another trooper
to witness the defendant’s refusal. After Krynski again
advised the defendant of the test and his right to refuse,
the defendant refused to submit to the Breathalyzer test.
Krynski then asked the defendant a series of questions
listed on a postarrest interview form. When asked
whether he had been drinking prior to his arrest, the
defendant responded that he drank beer earlier in the
evening at the Pig’s Eye Pub in Hartford, but had
stopped around 11 p.m. after consuming two, twenty-
three ounce beers.
The state charged the defendant with operating under
the influence of alcohol (OUI) and reckless driving. The
state also charged the defendant in a part B information
with being a third time OUI offender in violation of
§ 14-227a (g) (2) and (g) (3). Following a trial, a jury
found the defendant guilty of both OUI and reckless
driving. The defendant waived his right to a jury trial
regarding the part B information, which then was tried
to the court. The court, D’Addabbo, J., found the defen-
dant guilty of being a third time OUI offender. The court
subsequently imposed on the defendant a total effective
sentence of three years of incarceration, suspended
after twenty months, followed by three years of proba-
tion. This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
I
The defendant first claims that the court improperly
denied his motion to suppress the statements he gave
to the police during his postarrest interview. The defen-
dant specifically argues that the evidence establishes
that Krynski failed to advise the defendant of his
Miranda rights at the station before questioning him.
The defendant additionally argues that the court
improperly determined that he implicitly had waived
his Miranda rights prior to speaking with the police.
We are not persuaded.
The following procedural history is relevant to our
resolution of this claim. The evidence portion of the
trial commenced on October 15, 2018. The state asked
Krynski on direct examination whether he had asked
the defendant any questions after the defendant had
declined to submit to the Breathalyzer test. Krynski
listed a series of processing questions from a postarrest
interview form that he had asked the defendant, includ-
ing questions concerning the defendant’s height, weight,
social security number, address, and phone number.
Krynski also testified that, in addition to the processing
questions, there was ‘‘another section’’ of the postarrest
interview form. The defendant objected, and the jury
was excused. The defendant requested an offer of proof,
and the state explained that it had planned to elicit
from Krynski the answers the defendant had given to
certain questions from the postarrest interview form,
including that the defendant had consumed two,
twenty-three ounce beers at the Pig’s Eye Pub.
The defendant argued that the admission of his
answers regarding his alcohol consumption violated his
constitutional rights under Miranda v. Arizona, 384
U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
and State v. Ferrell, 191 Conn. 37, 463 A.2d 573 (1983).
The defendant asserted that he did not waive his
Miranda rights because he did not sign a Miranda
waiver form before the arresting officers questioned
him.
During a recess on October 15, 2018, the defendant
filed a corresponding written motion to suppress the
statements he had made after his arrest and while in
police custody,2 and, outside the presence of the jury,
the court heard testimony from Krynski as well as argu-
ment from both parties. On October 16, 2018, the court
orally denied the defendant’s motion to suppress the
statements and later issued a written decision on the
motion, dated December 21, 2018.
The court found the following facts in connection
with the defendant’s motion to suppress. Krynski first
orally advised the defendant of his Miranda rights in
the cruiser, shortly following his arrest. He was not
questioned at that time.
At the station, and after advising the defendant of
his Miranda rights for the second time, Krynski asked
the defendant a series of questions printed in section
D, titled ‘‘Post Arrest Interview,’’ of the Officer’s OUI
Arrest and Alcohol Test Refusal or Failure Report form.
Krynski asked the defendant, inter alia, how much alco-
hol he had consumed, what type of alcohol he had
consumed, and where the defendant had been drinking
on May 31, 2017. The defendant responded that he had
consumed alcoholic beverages at a local bar.3
The court determined that the defendant was in cus-
tody at the time that he had made the statements and
that the statements were elicited as a result of interroga-
tion by the police. Accordingly, the court reasoned that
the statements would be admissible only if the defen-
dant had been advised properly of his Miranda rights
before making them and knowingly and voluntarily had
waived those rights.
The court found that the defendant had been advised
of his Miranda rights twice prior to questioning: once
in the cruiser, and again later at the station. The court
also found that the defendant did not explicitly waive
his Miranda rights orally or in writing.4 Nonetheless,
the court found that the defendant implicitly had waived
his right to remain silent by voluntarily responding to
the questions posed to him by Krynski. In so concluding,
the court gave weight to the defendant’s decision to
remain silent on his initial advisement, his indication
to Krynski that he understood his rights both generally
and as they related to his decision to refuse the Breatha-
lyzer test, and his familiarity with being arrested during
his prior arrests. The court also noted that there was
no evidence before it that indicated that the defendant’s
statements were coerced.
We begin by setting forth the applicable standard of
review and governing legal principles. ‘‘Under our well
established standard of review in connection with a
motion to suppress, we will not disturb a trial court’s
finding of fact unless it is clearly erroneous in view of
the evidence and pleadings in the whole record . . . .’’
(Internal quotation marks omitted.) State v. Arias, 322
Conn. 170, 176–77, 140 A.3d 200 (2016). ‘‘A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) FirstLight Hydro Generating
Co. v. Stewart, 328 Conn. 668, 679, 182 A.3d 67 (2018).
Generally, ‘‘[b]ecause it is the trial court’s function to
weigh the evidence and determine credibility, we give
great deference to its findings. . . . In reviewing fac-
tual findings, [w]e do not examine the record to deter-
mine whether the [court] could have reached a conclu-
sion other than the one reached. . . . Instead, we make
every reasonable presumption . . . in favor of the trial
court’s ruling.’’ (Internal quotation marks omitted.) Gia-
netti v. Norwalk Hospital, 304 Conn. 754, 766, 43 A.3d
567 (2012). ‘‘[W]hen a question of fact is essential to
the outcome of a particular legal determination that
implicates a defendant’s constitutional rights, [how-
ever] and the credibility of witnesses is not the primary
issue, our customary deference to the trial court’s fac-
tual findings is tempered by a scrupulous examination
of the record to ascertain that the trial court’s factual
findings are supported by substantial evidence.’’ (Inter-
nal quotation marks omitted.) State v. Kendrick, 314
Conn. 212, 222, 100 A.3d 821 (2014). ‘‘[When] the legal
conclusions of the court are challenged, [our review is
plenary, and] we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts set out in the court’s memorandum of
decision . . . .’’ (Internal quotation marks omitted.)
State v. Arias, supra, 177.
‘‘It is well established that the prosecution may not
use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of [a] defendant
unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimina-
tion. Miranda v. Arizona, [supra, 384 U.S. 444]. Two
threshold conditions must be satisfied in order to
invoke the warnings constitutionally required by
Miranda: (1) the defendant must have been in custody;
and (2) the defendant must have been subjected to
police interrogation.’’ (Internal quotation marks omit-
ted.) State v. Gonzalez, 302 Conn. 287, 294, 25 A.3d
648 (2011).
‘‘Although [a]ny [police] interview of [an individual]
suspected of a crime . . . [has] coercive aspects to it
. . . only an interrogation that occurs when a suspect
is in custody heightens the risk that statements obtained
therefrom are not the product of the suspect’s free
choice. . . . This is so because the coercion inherent in
custodial interrogation blurs the line between voluntary
and involuntary statements . . . . Thus, the court in
Miranda was concerned with protecting defendants
against interrogations that take place in a police-domi-
nated atmosphere, containing inherently compelling
pressures [that] work to undermine the individual’s will
to resist and to compel him to speak [when] he would
not otherwise do so freely . . . . By adequately and
effectively appris[ing] [a suspect] of his rights and reas-
suring the suspect that the exercise of those rights must
be fully honored, the Miranda warnings combat [the]
pressures inherent in custodial interrogations.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Castillo, 165 Conn. App. 703, 713–14, 140 A.3d
301 (2016), aff’d, 329 Conn. 311, 186 A.3d 672 (2018).
Thus, if a suspect is in custody and has been subjected
to police interrogation, ‘‘prior to the questioning, the
suspect [must be] advised that he has a right to remain
silent, that any statement he does make may be used
as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.’’
(Internal quotation marks omitted.) State v. Mangual,
311 Conn. 182, 185 n.1, 85 A.3d 627 (2014), citing
Miranda v. Arizona, supra, 384 U.S. 444.
A
The defendant first argues that the evidence plainly
establishes that Krynski failed to advise the defendant
of his Miranda rights at the station until after ques-
tioning him. To support this argument, the defendant
asserts that the video evidence from the booking area
at the station ‘‘undermines’’ Krynski’s trial testimony
that he read the defendant his rights from a form prior
to questioning the defendant because the booking video
allegedly fails to show Krynski reading from any form
while in the booking area. Because he was not advised
of his Miranda rights at the station, the defendant
argues, the court improperly denied his motion to sup-
press the statements he made at the station.
This is not the argument the defendant made in the
trial court. The defendant filed a motion for a new trial
dated November 28, 2018, and the court heard argument
on that motion on December 21, 2018. In his motion,
the defendant made a different argument than the one
he now raises on appeal: namely, the defendant argued
that a ‘‘close review’’ of the booking video demonstrated
that Krynski failed to provide to the defendant a written
advisement of rights at the station until after he had
questioned the defendant. Contrary to his position on
appeal, the defendant conceded in his motion for a new
trial that the second Miranda advisement occurred but
claimed that the second advisement took place after
the defendant had been interrogated—specifically, the
second advisement occurred when Krynski provided to
the defendant the written advisement of rights. The
court denied the defendant’s motion, characterizing the
defendant’s claims as ‘‘simpl[e] reiterations of argu-
ments previously made during the trial [in support of
a motion to suppress] and denied by the [trial] court.’’
‘‘[I]t is not ordinarily the function of a reviewing court
to make factual findings and . . . conclusions of fact
may be drawn on appeal only where the subordinate
facts found [by the trial court] make such a conclusion
inevitable as a matter of law . . . or where the undis-
puted facts or uncontroverted evidence and testimony
in the record make the factual conclusion so obvious as
to be inherent in the trial court’s decision.’’ (Emphasis
added; internal quotation marks omitted.) Gianetti v.
Norwalk Hospital, supra, 304 Conn. 762. On appeal,
the defendant essentially argues that, when the court
reviewed the booking video, it should have drawn an
inference from the contents of the video that Krynski’s
testimony should not be credited because the video
does not depict Krynski reading from a form. Put differ-
ently, the defendant argues that the court’s interpreta-
tion of the booking video was clearly erroneous because
the court failed to draw an inference from the video
that is favorable to him. Moreover, it is also important
to emphasize that the defendant never argued to the
court that it should draw such an inference. Because
‘‘the function of [this court] is to review findings of
fact, not make factual findings’’; State v. Wilson, 111
Conn. App. 614, 621, 960 A.2d 1056 (2008), cert. denied,
290 Conn. 917, 966 A.2d 234 (2009); we decline to make
findings of fact with respect to the defendant’s alterna-
tive interpretation of the booking video.
More significantly, the defendant’s argument that he
was not advised of his Miranda rights at the police
station is also unpersuasive because it fails to account
for the fact that Krynski already had advised the defen-
dant of his Miranda rights in the cruiser. The defendant
admits that this first advisement in the cruiser took
place before he was interrogated at the station. The
defendant does not argue that Krynski’s advisement in
the cruiser was inadequate in any way, such that he
was entitled to a readvisement of his Miranda rights.
The defendant, for instance, does not assert that the
Miranda advisement in the cruiser was deficient
because the advisement failed to reasonably convey to
him his rights. See, e.g., State v. McMillion, 128 Conn.
App. 836, 837–42, 17 A.3d 1165 (considering adequacy
of content of Miranda advisement), cert. denied, 302
Conn. 903, 23 A.3d 1243 (2011). Beyond characterizing
the advisement in the cruiser as untimely without fur-
ther argument or authority, the defendant did not argue
before the trial court and does not argue on appeal
that a sufficient amount of time passed between the
advisement in the cruiser and the interrogation, such
that the police were obligated to readvise the defendant
of his Miranda rights before questioning him.5
Because the defendant has failed to challenge as
invalid Krynski’s advisement of the defendant’s
Miranda rights in the cruiser, the defendant concedes
that he was taken into custody, properly advised of his
Miranda rights prior to police interrogation, remained
silent, and later decided to speak in response to police
interrogation. We thus conclude that, regardless of
whether Krynski advised the defendant of his Miranda
rights at the station,6 the court properly determined that
the defendant had been advised of his Miranda rights
before he made his statements in response to police
interrogation.
B
The defendant next argues that the court improperly
determined that he implicitly had waived his Miranda
rights prior to speaking with the police. The defendant
asserts that his decision to remain silent after being
advised of his rights in the cruiser, then later to admit
to consuming alcohol, did not constitute a valid waiver
of his rights, particularly because Krynski had failed to
ask the defendant explicitly whether he elected to waive
his rights. We are not persuaded.
Because the defendant was subject to custodial inter-
rogation, ‘‘any statements made by the [defendant] in
response to the questioning will be suppressed unless,
prior to the questioning, the [defendant] [was] advised’’
of his rights under Miranda; State v. Mangual, supra,
311 Conn. 185 n.1; and the defendant waived those
rights. ‘‘[T]he accused’s statement during a custodial
interrogation is inadmissible at trial unless the prosecu-
tion can establish that the accused in fact knowingly
and voluntarily waived [his Miranda] rights when mak-
ing the statement.’’ (Internal quotation marks omitted.)
State v. Christopher S., 338 Conn. 255, 278, 257 A.3d
912 (2021).
‘‘To be valid, a [Miranda] waiver must be voluntary,
knowing and intelligent. . . . The state has the burden
of proving by a preponderance of the evidence that
the defendant voluntarily, knowingly and intelligently
waived his Miranda rights. . . . Whether a purported
waiver satisfies those requirements is a question of fact
that depends on the circumstances of the particular
case.’’ (Internal quotation marks omitted.) State v.
Andino, 173 Conn. App. 851, 861, 162 A.3d 736, cert.
denied, 327 Conn. 906, 170 A.3d 3 (2017). ‘‘Although
the issue [of whether there has been a knowing and
voluntary waiver] is . . . ultimately factual, our usual
deference to fact-finding by the trial court is qualified,
on questions of this nature, by the necessity for a scru-
pulous examination of the record to ascertain whether
such a factual finding is supported by substantial evi-
dence.’’ (Internal quotation marks omitted.) State v.
Cushard, 164 Conn. App. 832, 838–39, 137 A.3d 926
(2016), aff’d, 328 Conn. 558, 181 A.3d 74 (2018).
‘‘There is no requirement in our law that a valid
Miranda waiver must be evidenced by a written waiver.
[T]he state must demonstrate: (1) that the defendant
understood his rights, and (2) that the defendant’s
course of conduct indicated that he did, in fact, waive
those rights. . . . In considering the validity of [a]
waiver, we look, as did the trial court, to the totality
of the circumstances of the claimed waiver.’’ (Internal
quotation marks omitted.) State v. Andino, supra, 173
Conn. App. 861. ‘‘[A]n express written or oral statement
of waiver of the right to remain silent or of the right
to counsel is usually strong proof of the validity of
that waiver, but is not inevitably either necessary or
sufficient to establish waiver. The question is not one
of form, but rather whether the defendant in fact know-
ingly and voluntarily waived the rights delineated in the
Miranda case . . . [and] in at least some cases waiver
can be clearly inferred from the actions and words
of the person interrogated.’’ (Internal quotation marks
omitted.) State v. Cushard, supra, 164 Conn. App. 839.
For instance, a ‘‘defendant’s silence, coupled with an
understanding of his rights and a course of conduct
indicating waiver,’’ may indicate that a defendant has
waived his rights. (Internal quotation marks omitted.)
State v. Wilson, 183 Conn. 280, 284, 439 A.2d 330 (1981).
Our review of the record indicates that the court
properly determined that the defendant voluntarily,
knowingly, and intelligently waived his Miranda rights.
To start, the court properly concluded that the defen-
dant understood his rights. See State v. Andino, supra,
173 Conn. App. 861. After Krynski initially advised the
defendant of his rights and asked him if he understood
his rights, the defendant remained silent, from which
it reasonably can be inferred that he understood his
right to do so. See State v. Hafford, 252 Conn. 274, 296,
746 A.2d 150 (concluding that defendant’s refusal to talk
indicated defendant’s understanding of right to remain
silent), cert. denied, 521 U.S. 855, 121 S. Ct. 136, 148 L.
Ed. 2d 89 (2000).
Upon arrival at the station, the defendant once again
was advised of his rights. He also was advised as to
the consequences of refusing a Breathalyzer test, which
he acknowledged. Each of these actions indicates the
defendant’s understanding of the rights he enjoyed. The
defendant’s prior criminal history further supports the
court’s conclusion that he understood the rights he
maintained while under arrest. See State v. Griffin,
339 Conn. 631, 688, A.3d (2021) (noting that
defendant’s prior experience in criminal justice system
indicated defendant’s ‘‘[full] underst[anding] [of] the
nature of his Miranda rights and the consequences
of waiving (or never invoking) them’’). As the record
reflects, the defendant previously was arrested for OUI
on two separate occasions, on February 1 and October
4, 2008. Accordingly, the totality of the circumstances
indicate that the defendant understood his rights.
Additionally, the court properly determined that the
defendant’s course of conduct reflected a waiver of his
rights. See State v. Andino, supra, 173 Conn. App. 861.
The defendant voluntarily answered multiple questions
concerning his whereabouts and his consumption of
alcohol on May 31, 2017. The defendant was provided
with, and declined, the opportunity to contact an attor-
ney and, instead, answered the questions he was asked.
‘‘By speaking, the defendant has chosen unambiguously
not to assert his right to remain silent.’’ (Internal quota-
tion marks omitted.) State v. Silva, 166 Conn. App. 255,
285, 141 A.3d 916, cert. denied, 323 Conn. 913, 149 A.3d
495 (2016), cert. denied, U.S. , 137 S. Ct. 2118,
198 L. Ed. 2d 197 (2017). Considering the totality of the
circumstances, the court properly concluded that the
defendant implicitly waived his rights prior to volun-
teering his statements in response to questioning.
For the foregoing reasons, we are not persuaded by
the defendant’s claim that he did not voluntarily, know-
ingly, and intelligently waive his rights under Miranda
prior to responding to the postarrest interview form
questions. Accordingly, we conclude that the court
properly denied the defendant’s motion to suppress the
statements he made in response to police interrogation
while in custody.
II
The defendant next claims that the court improperly
denied a motion in limine in which he sought to preclude
the trial testimony of Krynski and Quagliaroli or, alter-
natively, an instruction permitting the jury to draw an
adverse inference against the state because Krynski
intentionally had turned off his body microphone for a
period of time during the traffic stop. According to
the defendant, Krynski’s action prevented the audio
recording of a conversation between Krynski and Quag-
liaroli that the defendant contends was potentially
exculpatory. The state responds that the defendant’s
claim fails because Krynski’s brief muting of his micro-
phone did not constitute a failure to preserve evidence
or the destruction of evidence as argued by the defen-
dant.7 We agree with the state that the defendant has
failed to establish the factual predicate for a due process
violation under either the state or federal constitution
arising out of the alleged deprivation of potentially
exculpatory evidence and that the court did not abuse
its discretion by denying the motion in limine.
The following additional facts, as found by the court
in its ruling on the motion in limine, and procedural
history are relevant to this claim. The mobile video/
audio recording device, or MVR, in Krynski’s cruiser
was first activated when he turned on his cruiser’s lights
to initiate the traffic stop of the defendant. The
recording—the entirety of which was admitted into evi-
dence at trial with minor redactions8—captured both
video and audio of the officers’ interactions with the
defendant, including the initial traffic stop, the adminis-
tration of the field sobriety tests, and his subsequent
arrest. Just prior to placing the defendant under arrest
at the scene, however, Krynski deactivated his body
microphone for approximately forty-eight seconds, dur-
ing which time he and Quagliaroli walked away from
the defendant to have a conversation. Because
Krynski’s body microphone provided the audio for the
video recording captured by the cruiser’s dashboard
camera, the audio portion of the conversation between
Krynski and Quagliaroli was not recorded. The video
portion of the recording, however, continued and
showed that the conversation between the officers took
place away from the defendant.
Prior to trial, the defendant filed a motion in limine
that sought to preclude Krynski and Quagliaroli from
testifying at trial because, according to the defendant,
Krynski’s deactivation of his body microphone while at
the scene was contrary to existing state police regula-
tions or directives and deprived the defendant of poten-
tially exculpatory evidence in violation of his right to
due process.9 In addition to asking the court to preclude
the testimony of both officers, the defendant alterna-
tively asked the court to instruct the jury that it was
permitted to draw an adverse inference against the state
regarding the missing audio—namely, that it would
have been unfavorable to the state.
The court conducted a hearing on the motion in
limine. The defendant presented testimony from a sin-
gle witness, Michael Mebane, a communication engi-
neer with the state police. The purpose of Mebane’s
testimony was to establish that the cruiser’s recording
equipment was functioning properly at the time of the
defendant’s arrest and, thus, that the lack of audio
resulted from Krynski’s intentional decision to turn off
his body microphone.10 In his motion in limine and argu-
ment to the court, the defendant failed to point to any
then existing statutory or regulatory requirements that
imposed on the state police a duty to capture both audio
and video recordings of the entirety of an OUI traffic
stop. Rather, the defendant cited only to a portion of
the state police’s Administration and Operation Manual
(AOM) that contains general guidelines instructing
troopers to record continuously ‘‘all traffic stops.’’11
After hearing argument by counsel, the court indicated
that it would issue a decision after it had reviewed
the record, including the audio/video recording of the
traffic stop.
Prior to trial, the court made an oral ruling denying
the motion in limine. Significantly, in its oral ruling, the
court emphasized that the defendant’s account in his
motion regarding what had transpired during the period
of time that Krynski turned off his body microphone
was not accurate based on the court’s review of the
recording. Although the defendant stated in the motion
in limine that the officers had failed to record ‘‘oral
conversations with the defendant’’ and that the state
was unable to ‘‘furnish a complete copy of the [officer’s]
interactions with the defendant,’’ the court made the
following contrary findings on the basis of its review
of the video recording: ‘‘The video shows a conversation
between . . . Krynski and Quagliaroli many feet away
from the defendant. The defendant is not part of the
conversation. Although the defendant is not saying any-
thing, he’s constantly being recorded. In fact, there’s
one view that he’s laying his head on the roof of the
vehicle.’’12
The court found that all interactions between the
officers and the defendant properly were recorded and
was not persuaded that the defendant had established
the existence of any legal duty on the part of Krynski
to record his conversation with Quagliaroli. The court
nevertheless also explained that, even if it were wrong
in that regard, it was not convinced that the failure to
record the conversation equated to a destruction of
evidence. For purposes of its analysis, however, the
court chose to presume without deciding that the troop-
er’s unrecorded conversation was destroyed or other-
wise unpreserved evidence, and it applied the four fac-
tor balancing test set forth by our Supreme Court in
State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227
(1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84
L. Ed. 2d 814 (1985), for determining whether a due
process violation under the state constitution had
occurred. The court concluded that, on balance, the
factors weighed in favor of the state.
The court also determined that the defendant had
failed to establish bad faith on the part of Krynski neces-
sary to sustain a federal due process violation, and the
defendant had also failed to establish any violation of
the confrontation clause. Although the court denied the
motion in limine, it indicated that it would grant the
defendant extra leeway in cross-examining the officers
about the unrecorded conversation. The court later filed
a posttrial written articulation of its ruling.13
Both Krynski and Quagliaroli testified at trial and
were extensively cross-examined by the defendant.
During cross-examination, defense counsel asked Kryn-
ski why he had turned off his body microphone. Krynski
explained that he wanted to get a ‘‘second opinion’’
from Quagliaroli as to whether he should arrest the
defendant and to confer about whether it was safe to
leave the defendant’s vehicle at the scene or it was
necessary to call a tow truck. Krynski agreed with
defense counsel that he had not wanted his conversa-
tion with Quagliaroli to ‘‘become part of the case in
evidence.’’
During closing argument, defense counsel argued
that Krynski’s act of turning off his body microphone
and his testimony that he did not want his consultation
with Quagliaroli to become part of the evidence in the
case raised reasonable doubt regarding the defendant’s
guilt. Specifically, defense counsel argued that Krynski,
in needing to consult with Quagliaroli prior to initiating
the arrest, clearly had some concern regarding whether
the defendant had failed the sobriety tests, and,
according to defense counsel, Krynski’s doubt was
enough for the jury also to find reasonable doubt.
‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court.’’ (Internal quotation marks omitted.) State
v. Fowler, 102 Conn. App. 154, 159, 926 A.2d 672, cert.
denied, 284 Conn. 922, 933 A.2d 725 (2007). ‘‘[A] trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion.’’ (Internal quotation marks omitted.) State
v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). To
the extent that a ruling on a motion in limine turns
on a legal determination, however, our review of that
determination will be plenary. See State v. Isabelle, 107
Conn. App. 597, 604, 946 A.2d 266 (2008).
‘‘[I]t is well established that there are two areas of
constitutionally guaranteed access to evidence such
that denying or foreclosing the defendant’s access to
that evidence may constitute a due process violation.
. . . The first situation concerns the withholding of
exculpatory evidence by the police from the accused.
. . . The second situation . . . concerns the failure of
the police to preserve evidence that might be useful
to the accused.’’ (Citations omitted; emphasis omitted;
internal quotation marks omitted.) State v. Johnson,
288 Conn. 236, 275–76, 951 A.2d 1257 (2008).
‘‘Despite these constitutional concerns, it is not suffi-
cient under the federal or state constitution for a defen-
dant simply to demonstrate that the police or the state
has failed to preserve evidence. With respect to a due
process violation for failure to preserve under the fed-
eral constitution, the United States Supreme Court has
held that the due process clause of the fourteenth
amendment requires that a criminal defendant . . .
show bad faith on the part of the police [for] failure to
preserve potentially useful evidence [to] constitute a
denial of due process of law. . . . Notably, in [Arizona
v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed.
2d 281 (1988)], the court observed that it had adopted
a higher burden for defendants seeking to demonstrate
a due process violation for failure to preserve evidence
than that applicable to claims that the state has sup-
pressed or withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963) (not requiring defendant to show
bad faith to demonstrate due process violation). The
court in Youngblood explained that it was unwilling to
read the fundamental fairness requirement of the [d]ue
[p]rocess [c]lause . . . as imposing on the police an
undifferentiated and absolute duty to retain and to pre-
serve all material that might be of conceivable eviden-
tiary significance in a particular prosecution. . . .
‘‘In [State v. Morales, 232 Conn. 707, 723, 657 A.2d
585 (1995)], [our Supreme Court] rejected the federal
bad faith requirement for claims alleging a failure to
preserve in violation of our state constitution. Rather,
[it] maintained that, in determining whether a defendant
has been afforded due process of law under the state
constitution, the trial court must employ the . . . bal-
ancing test [previously set forth in State v. Asherman,
supra, 193 Conn. 724], weighing the reasons for the
unavailability of the evidence against the degree of prej-
udice to the accused. More specifically, the trial court
must balance the totality of the circumstances sur-
rounding the missing evidence, including the following
factors: the materiality of the missing evidence, the
likelihood of mistaken interpretation of it by witnesses
or the jury, the reason for its nonavailability to the
defense and the prejudice to the defendant caused by
the unavailability of the evidence.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
State v. Johnson, supra, 288 Conn. 276–77.
On appeal, the defendant does not assert a Brady
violation premised upon the state’s withholding of
some existing evidence that is exculpatory in nature.14
Rather, the defendant frames his claim as one that chal-
lenges the state’s alleged destruction of or failure to
preserve evidence that he asserts was exculpatory. Spe-
cifically, the defendant argues that Krynski’s decision
to turn off his body microphone so that his conversation
with Quagliaroli was never recorded is, in essence, the
legal equivalent of the state failing to preserve or
destroying evidence. For the following reasons, we dis-
agree.
In Johnson, our Supreme Court was presented with
an analogous claim, which it rejected. Id., 270–81. In
Johnson, the defendant, who was appealing from a mur-
der conviction; id., 238; claimed that the court improp-
erly had denied a motion to dismiss in which he argued
that his due process rights under the state and federal
constitutions were violated because the investigating
police officers had ‘‘failed to preserve the methods by
which they interrogated’’ a key witness for the state by
not recording the entirety of all of the interviews they
conducted with the witness. Id., 270. The defendant
also claimed that the court improperly had denied his
request for an adverse inference instruction as an alter-
native remedy for the alleged due process violation.
Id., 270–71. Our Supreme Court clarified that ‘‘[t]he
defendant does not claim that the state withheld state-
ments made by [the witness] or that the state failed
to preserve the audiotaped statements that it created.
Rather, the defendant claims that the investigating
police officers had a duty to record the entirety of their
interviews with [the witness] and that their failure to
do so constituted a failure to preserve evidence within
the meaning of Morales and Youngblood.’’ Id., 278. Our
Supreme Court disagreed with the defendant that the
police’s decision not to make recordings of what the
police characterized as ‘‘ ‘preinterview[s]’ ’’; id., 271;
constituted a failure to preserve evidence that impli-
cated his due process rights. Id., 279.
The court held that ‘‘the duty to preserve with which
Morales and Youngblood are concerned depends on the
government’s possession of evidence capable of being
preserved’’ and that the state’s duty to preserve evi-
dence does not encompass or implicate ‘‘the collection
and creation of evidence.’’ (Emphasis added.) Id. The
court agreed with the state’s contention that ‘‘the trial
court properly declined to dismiss the charges because
it correctly recognized the distinction between allega-
tions that the police had failed to preserve exculpatory
evidence and allegations that the police had failed to
create evidence that might have been exculpatory.’’
(Emphasis in original.) Id., 270. In other words, if the
police failed to make a recording of something they had
no legal obligation to record, a court cannot properly
conclude that the police withheld the production of
evidence or destroyed evidence, because, in fact, no
such evidence existed.
The defendant does not address or attempt to distin-
guish the holding in Johnson in his appellate brief but,
instead, cites to nonbinding and unpersuasive out-of-
state authorities to advance his argument that Krynski’s
intentional act of turning off his body microphone to
confer with another police officer should be treated as
the equivalent of the destruction of evidence. One of
the cases cited by the defendant, People v. Strobel, 14
N.E.3d 1202 (Ill. App. 2014), rather than supporting his
argument, in fact, is consistent with our Supreme
Court’s decision in Johnson.
In Strobel, the state appealed from a trial court ruling
granting a defendant’s motion in limine and barring the
state from presenting at trial dashboard camera video
of the defendant’s performance of field sobriety tests
and subsequent arrest, or from offering testimony from
officers regarding the same. Id., 1203. The video
recording did not contain any audio because the
arresting officer purportedly forgot to activate his cruis-
er’s audio device. Id. The Illinois appellate court
reversed and remanded, holding that the trial court had
abused its discretion by imposing discovery sanctions
because the state promptly had turned over the video,
which ‘‘contained no audio of the traffic stop because
no audio was ever recorded.’’ Id. Like in the present
case, the defendant argued that the absence of audio
on the video amounted to the destruction of evidence
of what occurred during the traffic stop, and the state
argued in response that, because no audio recording
was ever made and in the possession and control of
the state, the defendant’s argument was without merit.
See id. The appellate court agreed, stating that the
record did not ‘‘support any inference or suggestion
that the police or the prosecution intentionally or inad-
vertently destroyed any preexisting discoverable evi-
dence.’’15 (Emphasis added.) Id., 1205.
Here, just like in Johnson and Strobel, the evidence
before the court showed that the police acted in a way
that resulted in the failure to create an audio recording.
Specifically, a state trooper intentionally chose not to
record audio of a brief exchange with another trooper
that, as found by the court, occurred away from the
defendant, without his involvement or that of any other
member of the public. In order to implicate due process
under either the federal or state constitution, however,
the defendant must first demonstrate that the police
or prosecution failed to preserve or destroyed some
evidence that actually existed. As the court in Johnson
made clear, the due process clause is not implicated
by a claim that, in the absence of an express legal duty
to do so, the state failed to collect or create certain
evidence.
Moreover, although the defendant asserts that the
officers had a legal duty to record their conversation
at the scene, the defendant fails to point to any duly
enacted statute or regulation as the source of such
a legal duty. Our research has revealed none directly
applicable or in effect at the time of the defendant’s
arrest.16 The defendant relies entirely on a single page
taken from a state police AOM regarding MVR recording
guidelines. The portion of the guidelines submitted into
evidence provides in relevant part: ‘‘The following inci-
dents must be recorded by sworn personnel who are
provided with vehicles equipped with MVR cameras,
regardless of their duty status: (1) All traffic stops,
criminal enforcement stops, assists to motorists, and
pedestrian contacts in their entirety . . . . In doing so,
troopers will ensure that . . . MVR equipment is not
deactivated until the enforcement action undertaken is
completed . . . .’’ (Emphasis added.) Nothing in the
record before us, however, supports a conclusion that
the procedures set forth in the AOM are anything more
than administrative directives or best practices, or that
the AOM guidelines created any cognizable due process
interest in the defendant as might be the case with a duly
enacted statute or properly promulgated regulation.17
Furthermore, the court made no determination, nor
is it determinable from the record, that the guidelines
on which the defendant relies were, in fact, actually
violated by the troopers. Krynski never fully disengaged
or deactivated the MVR equipment. The MVR’s dash-
board camera video recorded the entirety of the troop-
ers’ interactions with the defendant during the traffic
stop.
In sum, in order to establish a due process violation
premised on the state’s destruction of or failure to pre-
serve evidence, the defendant first must demonstrate
the existence of some actual evidence that was within
the control of the state. Here, the trooper’s choice not
to record audio of a consultation between himself and
another law enforcement officer did not result in the
creation of evidence that was capable of either preser-
vation or destruction. Because this basic factual predi-
cate underlying the alleged due process violation is
missing, the court properly rejected the defendant’s
constitutional claim.18 Accordingly, because this was
the sole basis advanced in the motion in limine for the
requested relief, the court did not abuse its discretion
in denying the motion in limine.
III
Finally, the defendant claims that the court improp-
erly sustained the state’s objection to questions defense
counsel asked Krynski regarding a finding made by a
Department of Motor Vehicles (department) hearing
officer in an administrative proceeding that no probable
cause existed to arrest the defendant. On appeal, the
defendant appears to argue that the court should have
admitted evidence of the hearing officer’s finding of no
probable cause in order to impeach the ‘‘credibility’’ of
the arresting officers.19 The defendant also appears to
assert that the hearing officer’s finding of no probable
cause is relevant and admissible to show that there was
no probable cause to arrest the defendant. We are not
persuaded.20
The following additional facts and procedural history
are relevant to our resolution of this claim. During
cross-examination, defense counsel asked Krynski
whether, at some point prior to trial, he had appeared
before the department in a driver’s license suspension
proceeding and presented the recording of the defen-
dant’s arrest to the department. The state objected,
asked that the jury be excused, and requested an offer
of proof. In response to the state’s request for an offer of
proof, defense counsel elicited testimony from Krynski
that he had testified at a department hearing concerning
the defendant’s arrest. Krynski confirmed that, at some
point following the department hearing, he had become
aware of the hearing officer’s findings. The hearing offi-
cer had concluded that, in her opinion, there was no
probable cause to arrest the defendant because he had
substantially passed the field sobriety tests, including
by maintaining his balance on the one leg stand test
for thirty-five seconds.
Defense counsel’s claim to the court was that he
had the right to cross-examine Krynski concerning the
hearing officer’s finding of no probable cause because
Krynski’s testimony regarding the finding could have
helped the jury make a determination concerning his
credibility, specifically with respect to his decision to
arrest the defendant based on his performance of the
field sobriety tests. On the basis of our review of the
arguments advanced by the state, it is clear that the
prosecutor perceived defense counsel’s argument to
be that the testimony concerning the hearing officer’s
finding of no probable cause was offered to attack the
witness’ credibility. The court’s comments, likewise,
reflect that it understood the defense counsel’s argu-
ment to be that the testimony was admissible to
impeach Krynski’s credibility. The court provided
defense counsel an opportunity to respond to the char-
acterization of his purpose for offering the testimony
as an attack on Krynski’s credibility, and defense coun-
sel did not contest this characterization. The court sus-
tained the state’s objection and concluded that the evi-
dence was not helpful to the jury’s evaluation of the
credibility of the witness.
We begin by setting forth our standard of review. ‘‘To
the extent [that] a trial court’s admission of evidence
is based on an interpretation of [our law of evidence],
our standard of review is plenary. For example, whether
a challenged statement properly may be classified as
hearsay and whether a hearsay exception properly is
identified are legal questions demanding plenary
review. . . . We review the trial court’s decision to
admit [or exclude] evidence, if premised on a correct
view of the law, however, for an abuse of discretion.
. . . The trial court has wide discretion to determine
the relevancy of evidence and the scope of cross-exami-
nation. . . . Thus, [w]e will make every reasonable
presumption in favor of upholding the trial court’s rul-
ing[s] [on these bases] . . . . In determining whether
there has been an abuse of discretion, the ultimate
issue is whether the court . . . reasonably [could have]
conclude[d] as it did.’’ (Internal quotation marks omit-
ted.) Weaver v. McKnight, 313 Conn. 393, 426, 97 A.3d
920 (2014).
A
The defendant first appears to argue that the testi-
mony concerning the hearing officer’s finding of no
probable cause was admissible to impeach the testifying
officers’ credibility. We are not persuaded.
‘‘The purpose of impeachment is to undermine the
credibility of a witness so that the trier will disbelieve
him and disregard his testimony.’’ (Internal quotation
marks omitted.) State v. Valentine, 240 Conn. 395, 411,
692 A.2d 727 (1997). Impeachment seeks to prevent any
‘‘inaccuracies [of a witness’ testimony from] go[ing]
unexposed and the truthfinding function of our trial
system [from] be[ing] hindered.’’ State v. Graham, 200
Conn. 9, 17, 509 A.2d 493 (1986); see id. (examining
impeachment of party’s own witness).
Prior findings by a third party concerning the credibil-
ity of a witness are generally inadmissible to impeach
that witness’ credibility in a later proceeding. See
Weaver v. McKnight, supra, 313 Conn. 432–33; Manson
v. Conklin, 197 Conn. App. 51, 62–63, 231 A.3d 254
(2020).21 In Weaver, the mother of a stillborn infant
brought a negligence action against her obstetrician/
gynecologist and his medical group. Weaver v.
McKnight, supra, 396; see also Manson v. Conklin,
supra, 59. The trial court, over objection, permitted the
defendants to impeach the credibility of the plaintiffs’
expert witness using a censure that he had received
from a voluntary membership medical organization,
which contained a determination that the expert had
violated the organization’s code of professional ethics.
Weaver v. McKnight, supra, 424–25.
On appeal, our Supreme Court determined that the
court improperly had admitted the testimony concern-
ing the organization’s determinations in the censure
for the purpose of impeachment because it constituted
extrinsic evidence of a prior act of misconduct.22 Id.,
432. Our Supreme Court noted that ‘‘[c]ommentators
and courts in other jurisdictions . . . generally have
concluded that counsel should not be permitted to cir-
cumvent the [prohibition on extrinsic evidence] by tuck-
ing a third person’s opinion about prior acts into a
question asked of the witness who has denied the act.’’
(Internal quotation marks omitted.) Manson v. Conklin,
supra, 197 Conn. App. 61, citing Weaver v. McKnight,
supra, 313 Conn. 428. ‘‘Professor Colin C. Tait and Judge
Eliot D. Prescott, in their treatise about Connecticut
evidence law, also agree that a witness cannot be asked
about the opinions of others regarding the alleged mis-
conduct. C. Tait & E. Prescott, Connecticut Evidence
(4th Ed. 2008) § 6.32.5, p. 362. They refer to [our
Supreme] [C]ourt’s decision in State v. Bova, [240 Conn.
210, 690 A.2d 1370 (1997)], as an example. In Bova,
[our Supreme] [C]ourt upheld a trial court’s decision
to preclude a party from asking a police officer about
another case in which a judge commented that another
witness was more credible than the police officer. . . .
Professor Tait and Judge Prescott [explain] in their
treatise . . . [that] [mis]conduct . . . can be proved
only by questions addressed to the witness, i.e., Did
you lie in case X? If the witness denies such misconduct,
the questioner must take the [witness’] answer and can-
not introduce extrinsic evidence.’’ (Citations omitted;
internal quotation marks omitted.) Weaver v. McKnight,
supra, 429–30.
As our Supreme Court noted, ‘‘[t]he reasons for pro-
hibiting such questions are the same reasons for pre-
cluding extrinsic evidence in the first place. . . . The
Third Circuit described the risk as follows: Allowing
such a line of questioning not only puts hearsay state-
ments before the jury, it injects the views of a third
person into the case to contradict the witness. This
injection of extrinsic evidence not only runs afoul of
[the rules of evidence], but also sets the stage for a
mini-trial regarding a tangential issue of dubious proba-
tive value that is laden with potential undue prejudice.’’
(Citations omitted; internal quotation marks omitted.)
Id., 430–31. Thus, our Supreme Court ‘‘conclude[d] that
the prohibition on introducing extrinsic evidence to
contradict a witness who has denied the alleged prior
misconduct extends to cross-examining that witness
about the opinions of third parties regarding that mis-
conduct and whether the witness suffered any conse-
quences as a result.’’23 Id., 432.
This court recently considered a similar issue in Man-
son v. Conklin, supra, 197 Conn. App. 51. In that case,
the plaintiff brought a negligence and indemnification
action against a police officer and a city after the plain-
tiff collided with the officer’s cruiser while riding his
dirt bike in the city. Id., 52–53. Prior to trial, the court
precluded the plaintiff from impeaching the officer’s
credibility using the findings and conclusions contained
in a series of internal affairs investigative reports cre-
ated by the city’s police department, which documented
unrelated instances in which the officer had engaged
in misconduct and dishonesty.24 Id., 55–56.
Relying on Weaver, this court affirmed the court’s
decision and determined that ‘‘the conclusions and find-
ings contained within the [internal affairs] reports con-
stitute extrinsic evidence of alleged prior misconduct
because they reflect the opinions of the department that
[the officer] acted untruthfully. Although the plaintiff
would have been permitted to question [the officer]
about his misconduct, he would have been precluded
from offering extrinsic evidence of that misconduct if
denied by [the officer].’’ Id., 62. Thus, ‘‘[t]he plaintiff
could not circumvent these rules by questioning [the
officer] about the conclusions and findings contained
in the reports.’’ Id.
In the present case, we conclude that the hearing
officer’s finding of no probable cause is inadmissible.
If the trial court were to admit the hearing officer’s
finding to impeach the troopers’ credibility, it would
be tantamount to introducing extrinsic evidence to
attack the troopers’ credibility.25 Although in the present
case, unlike in Weaver and Manson, the hearing officer
made her findings in the context of an administrative
hearing and her findings did not contain an express
finding of untruthfulness, we nonetheless conclude that
the principles dictated in Weaver and Manson apply to
the present case because the finding was offered by
the defendant to impeach the credibility of witnesses
on the stand. If a hearing officer makes a finding at a
previous administrative hearing and a court admits that
finding in a subsequent proceeding to allow a party to
attack the credibility of a witness on the stand, the risk
of ‘‘inject[ing] the views of a third person into the case
to contradict th[at] witness’’ is patently present, and,
thus, we are obligated to invoke the principles articu-
lated in the aforementioned cases to curtail that risk.
(Internal quotation marks omitted.) Weaver v.
McKnight, supra, 313 Conn. 430–31. Defense counsel
properly was permitted to, and did, cross-examine the
arresting officers about their administration of the field
sobriety tests to impeach their credibility. The court,
however, properly did not admit the hearing officer’s
finding of no probable cause to permit defense counsel
to impeach the witnesses’ credibility.
B
The defendant also appears to argue that the court
improperly excluded evidence of the hearing officer’s
finding of no probable cause because the evidence was
relevant and admissible to show that there was no prob-
able cause to arrest the defendant. We are not per-
suaded.
In his brief, the defendant asserted that the hearing
officer’s findings constituted ‘‘exculpatory evidence’’
that there was not probable cause to arrest him, which
should have been admitted as evidence. During oral
argument, however, counsel for the defendant stated
that, although ‘‘ideally’’ he would have preferred that
the hearing officer’s finding of no probable cause be
admitted for its truth, it would be inadmissible as hear-
say for that purpose.
To the extent that the defendant maintains that the
hearing officer’s finding of no probable cause is relevant
and admissible to prove that no probable cause existed
to arrest the defendant, the defendant raises this argu-
ment for the first time on appeal and, thus, it is not
preserved for review. ‘‘[T]his court is not required to
consider a claim unless it was distinctly raised at the
trial or arose subsequent to the trial. . . . It is well
established, however, that an unpreserved claim is
reviewable under [State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989), as modified by In re Yasiel R.,
317 Conn. 773, 781, 120 A.3d 1188 (2015)] when (1) the
record is adequate to review the alleged claim of error;
(2) the claim is of constitutional magnitude alleging
the violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt. . . . In the absence of any one of
these conditions, the defendant’s claim will fail. The
appellate tribunal is free, therefore, to respond to the
defendant’s claim by focusing on whichever condition
is most relevant in the particular circumstances.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Turner, 334 Conn. 660, 673, 224 A.3d 129 (2020).
Upon review of the record, we conclude that the
defendant’s claim is not reviewable because it fails
Golding’s second prong. See id. The defendant’s claim
is ‘‘purely evidentiary’’ in nature; see State v. Ampero,
144 Conn. App. 706, 721, 72 A.3d 435, cert. denied,
310 Conn. 914, 76 A.3d 631 (2013); and thus is not
‘‘of constitutional magnitude alleging the violation of
a fundamental right . . . .’’ (Internal quotation marks
omitted.) State v. Turner, supra, 334 Conn. 673.
Further, even if we were to reach the merits of the
defendant’s argument, we would also conclude that no
constitutional violation exists because the hearing offi-
cer’s finding, if offered to prove that there was no proba-
ble cause to arrest the defendant, is nonetheless inad-
missible because it is not material. ‘‘A defendant . . .
may introduce only relevant evidence, and, if the prof-
fered evidence is not relevant, its exclusion is proper
. . . . Evidence is relevant if it tends to make the exis-
tence or nonexistence of any other fact more probable
or less probable than it would be without such evidence.
. . . To be relevant, the evidence need not exclude all
other possibilities; it is sufficient if it tends to support
the conclusion [for which it is offered], even to a slight
degree.’’ (Citations omitted; internal quotation marks
omitted.) State v. Cerreta, 260 Conn. 251, 261–62, 796
A.2d 1176 (2002). ‘‘Relevant evidence . . . has a logical
tendency to aid the trier in the determination of an
issue.’’ (Emphasis added; internal quotation marks
omitted.) State v. Pena, 301 Conn. 669, 674, 22 A.3d 611
(2011). The commentary to the § 4-1 of the Connecticut
Code of Evidence explains that the code ‘‘expressly
requires materiality as a condition to relevancy in pro-
viding that the factual proposition for which the evi-
dence is offered must be material to the determination
of the proceeding . . . . The materiality of evidence
turns upon what is at issue in the case, which generally
will be determined by the pleadings and the applicable
substantive law.’’ (Citations omitted; internal quotation
marks omitted.) Conn. Code Evid. § 4-1, commentary.
The jury, which is the ‘‘sole trier of the facts’’ in a jury
trial; State v. Morgan, 274 Conn. 790, 802, 877 A.2d
739 (2005); ultimately ‘‘must find every element [of the
charged offense] proven beyond a reasonable doubt in
order to find the defendant guilty . . . .’’ (Emphasis
added; internal quotation marks omitted.) State v. Gon-
zalez, 311 Conn. 408, 419, 87 A.3d 1101 (2014).
Whether probable cause existed to arrest the defen-
dant is not an element of either of the offenses on which
the defendant was tried; see General Statutes §§ 14-222
and 14-227a (a) (1); and, thus, was not a material issue
before the jury.26 The jury, alone, was tasked with
determining whether, considering all of the facts and
circumstances before it, the prosecution proved beyond
a reasonable doubt that the defendant operated a motor
vehicle under the influence of alcohol or a drug. See
General Statutes § 14-227a (a) (1). The hearing officer’s
opinion considering probable cause, a nonissue in the
case, would not ‘‘aid the trier in the determination of’’
that, or any, issue in the case. (Internal quotation marks
omitted.) State v. Pena, supra, 301 Conn. 674. Accord-
ingly, because the hearing officer’s finding of no proba-
ble cause was not material to the jury’s determination
of the case before it, we conclude that the hearing
officer’s finding would have been inadmissible for its
truth.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
2
Although the defendant’s motion broadly sought to suppress all of the
‘‘statements made by the defendant after his arrest’’ and ‘‘any evidence
obtained as the fruits of those statements,’’ the court limited its consideration
to the statements that the defendant made at the station in response to
the questions from the postarrest interview form, including his statements
concerning alcohol and food consumption. The defendant on appeal primar-
ily, if not exclusively, challenges the court’s decision to admit these state-
ments.
The defendant asserts in his brief, however, that while in custody at the
scene of the stop, Krynski asked the defendant about certain receipts from
the Pig’s Eye Pub, which the arresting officers uncovered in the defendant’s
car. In its written decision on the motion to suppress the defendant’s postar-
rest statements, the court determined that the defendant ‘‘did not respond’’
to Krynski’s question about the receipts. The court deemed the receipts
inadmissible hearsay and prohibited the state from eliciting testimony con-
cerning their contents or any description thereof.
3
Although the court did not make an explicit factual finding concerning
the amount of alcohol the defendant drank on May 31, 2017, the court
concluded that the defendant answered the questions he was asked by
Krynski at the station, including how much alcohol he had drunk. During
the suppression hearing, outside of the presence of the jury, and at trial,
before the jury, Krynski testified that the defendant answered that he con-
sumed two, twenty-three ounce beers.
4
The court acknowledged that, at some point during booking, the defen-
dant signed a notice of rights form, which memorialized the defendant’s
Miranda rights. The court concluded that this form was not an express
waiver of his rights but, rather, indicated the defendant’s understanding of
the rights that he implicitly waived. The defendant asserts on appeal that,
because he did not sign the notice of rights form until after being questioned,
he did not waive his rights prior to questioning. This argument misconstrues
the court’s finding that the defendant implicitly waived his rights and that
the completed notice of rights form did not amount to an explicit waiver.
5
In a notice of supplemental authorities to this court, the defendant quoted
five of eight factors that courts must consider in evaluating whether it is
necessary for the police to again advise a suspect of his Miranda rights.
See In re Kevin K., 299 Conn. 107, 123, 7 A.3d 898 (2010). The defendant,
however, failed to make any argument concerning whether, or how, any of
these factors apply to the present case.
6
We emphasize that the court’s factual finding that the defendant was
advised of his Miranda rights a second time in the booking area of the
station is supported by evidence and, accordingly, is not clearly erroneous.
See FirstLight Hydro Generating Co. v. Stewart, supra, 328 Conn. 679.
Krynski testified outside of the presence of the jury that he had advised the
defendant of his Miranda rights in the cruiser and then again at the station.
The court reviewed two recordings: the video and audio recording from the
scene of the arrest, which documented Krynski advising the defendant of
his rights in the cruiser, and the video recording from the booking area,
which documented Krynski and the defendant in the booking area, communi-
cating at various points. In response to questions by the court, Krynski
confirmed that, while in the booking area, he advised the defendant of his
rights, then subsequently questioned the defendant.
7
Alternatively, the state argues that any error was harmless because the
court provided the defendant with an unfettered opportunity to cross-exam-
ine the officers at trial about the content of the unrecorded conversation
and the purpose for turning off the microphone. Furthermore, it argues that
the entirety of the video recording—which continued even during the time
the microphone was muted—was available for review by the jury and consti-
tuted a complete recording of the defendant’s interaction with the troopers
at the scene.
8
The video was redacted only with respect to certain statements that
were made by both the defendant and the officers regarding the defendant’s
prior OUI history.
9
Quagliaroli, who arrived at the scene after Krynski requested an addi-
tional trooper, indicated that his cruiser also was equipped with a mobile
video/audio recording device but that he never activated his cruiser’s lights
and was unaware whether his vehicle had recorded anything. Although
Quagliaroli’s failure to initiate recording at the scene was also raised as a
basis for the motion in limine, that ground was abandoned at the hearing
on the motion after defense counsel had an opportunity to speak with
Quagliaroli.
10
Mebane testified that his responsibilities included the installation and
maintenance of all recording devices used by the state police and that all
troopers were obligated to ensure that any recording devices in a cruiser
they were using were operational and, if not, to report any problems. Mebane
indicated that he was unable to find any requests by Krynski for maintenance
of the recording equipment used at the time of the defendant’s arrest.
11
The defendant submitted only a single page of the referenced operational
manual into evidence. Krynski testified at trial that troopers are provided
with a digital copy of the AOM and that the manual contains guidelines
regarding the recording by troopers of their interactions with members of
the public. No other witness testified regarding the AOM guidelines.
12
At a posttrial hearing on the defendant’s motion for a new trial, in which
he raised a similar argument to those made in the motion in limine, the
court again corrected the defendant’s characterization of what was depicted
in the video recording. The court clarified that Krynski was not having a
discussion with the defendant when he turned off his body microphone.
Specifically, the court cautioned: ‘‘I want the record to be clear for any
appellate review that this is the second time that counsel for the defendant
. . . misstated the facts in a motion. It is not a slight misstep because the
video records accurately and is not . . . consistent to counsel’s representa-
tion. . . . The claim . . . that this recording was with the defendant and
while [Krynski] was talking to the defendant shut off the [microphone] . . .
is completely not accurate.’’
13
The defendant later submitted a proposed jury instruction that would
have informed the jury that it was permitted to draw an adverse inference
from Krynski’s having turned off his microphone. That proposed instruction
provided: ‘‘If you find that any member of [the] Connecticut State Police,
at any point in their investigation of [the defendant], failed to preserve any
evidence, including, but not limited to, audio recordings derived from the
[recording] equipment installed in the trooper’s motor vehicle, you may infer
that such missing evidence would have been unfavorable to the state and
may further draw an inference that the unpreserved evidence was favorable
to [the defendant].’’ (Emphasis in original.) During the charging conference,
the defendant again pressed the court to provide an adverse inference
instruction to the jury. The state argued that such an instruction was not
justified given that no evidence was missing or destroyed and that the
defendant was free to make any assertion to the contrary in its closing
argument to the jury. The court agreed and declined to give the requested
instruction, referring in part to its earlier ruling on the motion in limine and
its conclusion that the officers properly ‘‘had the ability to shut off the [body
microphone] if they were in consultations.’’
14
The defendant also has not raised or briefed any confrontation clause
violation on appeal. Accordingly, we do not address that aspect of the
court’s decision.
15
The defendant, in relying on Strobel to support his claim, suggests that
it is fair to assume from the quoted language that the appellate court in
Strobel would have reached a different conclusion if the record before
it had established that the police officer intentionally had shut off the
microphone, as Krynski did in the present case. We disagree. The court’s
statement draws no distinction between intentional and inadvertent conduct
on the part of the police, mentioning both. Rather, the point the court
appears to make is that, regardless of the level of culpability, in order for
evidence to be withheld or destroyed it must be preexisting.
16
We are aware that General Statutes § 29-6d contains various provisions
discussing the use of body-worn recording equipment and dashboard cam-
eras by the state police, and that a version of this statute was in effect at
the time of the defendant’s traffic stop. Although referenced by the trial
court in its oral decision on the motion in limine, the defendant never relied
on § 29-6d as supporting his claim before the trial court nor has he raised
it or briefed its applicability, if any, on appeal. We accordingly decline to
discuss the statute further.
17
The procedures for promulgating administrative regulations are set forth
in General Statutes § 4-168 of the Uniform Administrative Procedure Act
(UAPA), General Statutes § 4-166 et seq. The UAPA defines the term ‘‘regula-
tion’’ in relevant part: ‘‘[E]ach agency statement of general applicability,
without regard to its designation, that implements, interprets, or prescribes
law or policy, or describes the organization, procedure, or practice require-
ments of any agency. The term . . . does not include (A) statements con-
cerning only the internal management of any agency and not affecting private
rights or procedures available to the public, (B) declaratory rulings issued
pursuant to section 4-176, or (C) intra-agency or interagency memoranda
. . . .’’ General Statutes § 4-166 (16).
18
As argued by the state, the court also concluded that, even if Krynski’s
failure to record the conversation between himself and Quagliaroli was the
legal equivalent of the destruction of or the failure to preserve evidence of
that trooper’s conversation, a weighing of the Asherman factors militates
against the finding of a due process violation under our state constitution.
See State v. Asherman, supra, 193 Conn. 724. Because we conclude that
the defendant’s claim fails under the rationale in Johnson, we do not address
this alternative basis for affirming the court’s denial of the relief requested
in the motion in limine.
19
During his cross-examination of Krynski, defense counsel attempted to
offer evidence of the hearing officer’s finding of no probable cause, and the
court ruled on the state’s objection to defense counsel’s offer outside of
the presence of the jury. The state subsequently called Quagliaroli to testify,
at which point the court had already precluded entry of the evidence through
Krynski. On appeal, the defendant asserts that, had he been allowed, he
would have attacked the credibility of both officers by using the hearing
officer’s no probable cause finding. Thus, although defense counsel did not
offer the evidence a second time or attempt to again raise his argument
during the cross-examination of Quagliaroli, we nonetheless conclude that
the defendant is not precluded from making his argument, as it relates to
Quagliaroli, on appeal.
20
Throughout his brief on appeal, the defendant additionally appears to
argue that the court’s preclusion of the testimony was not merely evidentiary
error but deprived him of a fair trial in violation of his constitutional rights.
The defendant did not make this claim to the trial court. Because we conclude
that the court properly excluded the testimony on well established eviden-
tiary principles, we are unpersuaded that the defendant’s right to a fair trial
was violated.
21
The defendant urges us to abandon the case law of this state and instead
follow the decision of the United States Court of Appeals for the Second
Circuit in United States v. White, 692 F.3d 235, 248 (2d Cir. 2012), in which
the Second Circuit determined that ‘‘witness[es] can be cross-examined
based on prior occasions when [their] testimony in other cases had been
criticized by [a] court as unworthy of belief.’’ (Internal quotation marks
omitted.) We decline to do so because it is not the province of this panel
to disregard binding authority of our Supreme Court or to overturn a decision
of another panel of this court.
22
‘‘[E]xtrinsic evidence is inadmissible to prove a witness’ specific acts
of misconduct evidencing a character for untruthfulness.’’ State v. Durdek,
184 Conn. App. 492, 510, 195 A.3d 388, cert. denied, 330 Conn. 934, 194 A.3d
1197 (2018).
23
Our Supreme Court noted that it ‘‘d[id] not decide whether a witness
may be asked about a determination by a judicial, state administrative
agency, or licensing board, not resulting in a perjury conviction, that the
witness testified untruthfully in a prior proceeding.’’ Weaver v. McKnight,
supra, 313 Conn. 432 n.9.
24
This court acknowledged that ‘‘[t]he record is somewhat muddled
regarding the precise evidentiary use the plaintiff hoped to make of these
reports or the information contained in them.’’ Manson v. Conklin, supra,
197 Conn. App. 56. This court determined that the plaintiff offered the report
findings for one of two reasons: (1) to impeach the officer’s credibility using
specific instances of misconduct, or (2) to admit the actual findings to prove
that the officer had engaged in misconduct and had lied about it. Id., 56–57.
The trial court ‘‘appear[ed] to have understood [the plaintiff’s] argument to
be that he had a right to question [the officer] about the findings and
conclusions of the [internal affairs division], rather than asking [the officer]
directly whether he had engaged in misconduct.’’ Id., 57–58.
25
We note that, even if the hearing officer’s findings did not constitute
inadmissible extrinsic evidence, offering evidence of the hearing officer’s
finding of no probable cause fails to impeach effectively the witnesses’
credibility. The mere fact that a third-party hearing officer disagreed with
the troopers’ conclusion that probable cause existed to arrest the defendant
does not necessarily mean that the hearing officer viewed the officers’
testimony as untruthful. Indeed, the hearing officer may have concluded
that the officers truthfully described the events surrounding the defendant’s
arrest, but that such facts, as a matter of law, did not create probable cause
to arrest the defendant. Thus, even if the court’s ruling was improper, it
nonetheless would have constituted harmless evidentiary error for these rea-
sons.
26
The defendant did not challenge the legality of his arrest before the
trial court. At no point did the defendant move to dismiss the case on the
basis of a lack of probable cause to arrest; see General Statutes § 54-56; or
file a motion to suppress that raised a similar claim. See Practice Book
§ 41-12.