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STATE OF CONNECTICUT v. ROBERT F. KELLEY, JR.
(AC 25813)

Schaller, DiPentima and Hennessy, Js.
Argued February 7—officially released May 16, 2006
(Appeal from Superior Court, judicial district of
Waterbury, geographical area number four,
Ginocchio, J.)

James O. Ruane, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state’s attorney,
with whom, on the brief, were John A. Connelly, state’s
attorney, and David A. Gulick, assistant state’s attorney,
for the appellee (state).

Opinion

HENNESSY, J. The defendant, Robert F. Kelley, Jr.,
appeals from the judgment of conviction, rendered after
a jury trial, of operating a motor vehicle while under the
influence of intoxicating liquor in violation of General
Statutes § 14-227a. On appeal, the defendant claims that
the trial court improperly (1) admitted into evidence
expert testimony, (2) admitted into evidence testimony
that implied that field sobriety tests have scientific
validity and (3) charged the jury. We affirm the judgment
of the trial court.
The following facts and procedural history are relevant
to our discussion. On December 28, 2002, Brian
Newman, a Naugatuck police officer, stopped a motor
vehicle being driven by the defendant and occupied by
the defendant’s girlfriend, Denise Fazzino.1 As Newman
approached the vehicle, he observed a twelve pack of
beer in the backseat. He further observed that eight
bottles were unopened and four bottles were missing.
When he reached the vehicle, he detected an odor of
alcohol and noticed that the defendant’s eyes were
bloodshot. An empty bottle of an alcoholic beverage
known as Twisted Tea also was found between the
driver’s and front passenger seats.
Suspecting that the defendant had been drinking,
Newman performed a number of tests to determine
the defendant’s level of intoxication. He first asked the
defendant for his driver’s license while asking him a
set of questions.2 Newman observed that the defendant
had difficulty answering his questions and that he fumbled
through his wallet while trying to locate his driver’s
license. He then asked the defendant to perform three
standard field sobriety tests, consisting of the horizontal
gaze nystagmus test,3 the ‘‘walk and turn’’ test4 and the
‘‘one leg stand’’ test.5 The defendant failed all three
tests.6
As a result, Newman placed the defendant under
arrest. The defendant was taken immediately to the
police station, where he ultimately refused to take a
Breathalyzer test. The defendant also refused to answer
Newman’s questions concerning consumption of alcohol,
drugs and food. The defendant then was charged
with operating a motor vehicle while under the influence
of intoxicating liquor in violation of § 14-227a.
The defendant elected a jury trial. Prior to the start
of trial, the defendant filed a motion in limine to preclude
the state and its witnesses from using any word
or phrase that would suggest that the walk and turn
and one leg stand tests are scientific in nature.7 The
defendant also argued that the state and its witnesses
should be permitted to describe the defendant’s actions
only during the tests and should not be permitted to
testify about whether they believed he passed or failed
the tests, which he argued is a matter of common knowledge
and, thus, should be left for the jury to decide.
The court denied the motion.
During the trial, the state called three witnesses relevant
to our discussion.8 Newman testified that he administered
the horizontal gaze nystagmus, walk and turn
and one leg stand tests to the defendant. He described
the defendant’s actions during the three tests. He further
testified that on the basis of his observations, he
believed that the defendant was impaired. Paul Bendler,
a Naugatuck police officer, testified that he was present
during the walk and turn and one leg stand tests, and
that on the basis of his observations, he, too, believed
that the defendant was impaired. Jack Richman, an
optometrist and certified field sobriety test instructor,
testified as an expert on the horizontal gaze nystagmus
test and its relationship to the walk and turn and one
leg stand tests when determining the accuracy rates of
those tests. Richman also testified that if a person failed
all three road sobriety tests, emitted a scent of alcohol,
admitted to no medical issues and admitted to drinking,
he believed, with a reasonable degree of scientific certainty,
that such an individual would be impaired as a
result of alcohol consumption and should not operate
a motor vehicle.9
Prior to the conclusion of the trial, the defendant
filed a request to charge, requesting that the court
instruct the jury that it could use its common experiences
in determining impairment and evaluating the
defendant’s performance on the field sobriety tests. The
request was denied. The defendant ultimately was convicted.
This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant first claims that the court improperly
admitted expert testimony. His argument on this issue
is twofold. He first argues that Richman improperly
testified as to the ultimate issue of impairment. He also
argues that Richman’s testimony regarding the walk
and turn and one leg stand tests was improper because it
did not satisfy the criteria needed for expert testimony.
‘‘Our standard of review concerning evidentiary rulings
is well established. The trial court’s ruling on evidentiary
matters will be overturned only upon a
showing of a clear abuse of the court’s 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. . . . [Thus, our]
review of such rulings is limited to the questions of
whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Internal quotation marks omitted.) State v.
Thompson, 71 Conn. App. 8, 20, 799 A.2d 1126 (2002).
With the standard of review in mind, we turn to the
defendant’s arguments.
The defendant’s first argument that Richman improperly
testified as to the ultimate issue of impairment
is without merit. After reviewing the parties’ briefs, it
appears that both parties are under the assumption that
Richman testified as to the ultimate issue of impairment.
Similarly, the state argued in its closing argument:
‘‘Richman stated that with all the tests [the defendant]
has taken and failed, all the clues, with everything else
ruled out, his professional opinion is that [the defendant]
was drunk. He was impaired.’’ We disagree, however,
that Richman testified as to the ultimate issue of
the defendant’s impairment.
‘‘[T]he phrase ultimate issue is not amenable to easy
definition. . . . As a rule, however, [t]estimony is
objectionable if it embraces an opinion on the ultimate
issue to be decided by the trier of fact. . . . It is
improper for a witness to offer testimony that essentially
constitutes a legal opinion about the guilt of the
defendant.’’ (Internal quotation marks omitted.) State
v. Morocho, 93 Conn. App. 205, 223, 888 A.2d 164, cert.
denied, 277 Conn. 915, A.2d (2006). Here, Richman
never opined that the defendant was impaired.
Instead, he merely responded to hypothetical questions
mirroring the facts at issue,10 which we already have
held is permissible. State v. Abreu, 34 Conn. App. 629,
633–34, 643 A.2d 871, cert. denied, 230 Conn. 915, 645
A.2d 1019 (1994).
The defendant’s second argument, that Richman’s
testimony regarding the walk and turn and one leg stand
tests was improper because it did not satisfy the criteria
needed for expert testimony, is also without merit.
‘‘Expert testimony generally is admissible if (1) the witness
has a special skill or knowledge directly applicable
to a matter in issue, (2) that skill or knowledge is not
common to the average person, and (3) the testimony
would be helpful to the court or jury in considering the
issues. . . . Although expert testimony may be admissible
in many instances, it is required only when the
question involved goes beyond the field of the ordinary
knowledge and experience of the trier of fact. (Citation
omitted; internal quotation marks omitted.) State v.
Padua, 273 Conn. 138, 149, 869 A.2d 192 (2005). After
reviewing the record, we conclude that Richman’s testimony
satisfied the criteria set forth in Padua.
Regarding the first criterion, as an optometrist and
certified field sobriety test instructor, Richman had
knowledge directly applicable to the matter in issue:
the accuracy rates of the tests used to determine
whether the defendant was impaired on the night of
his arrest. Regarding the second criterion, Richman’s
expertise in interpreting the combined significance of
the results of the three field sobriety tests in determining
accuracy was not common to the average person.
Regarding the third criterion, the accuracy rates of the
field sobriety tests in determining impairment was helpful
to the jury in considering the issue of impairment,
especially in light of the fact that the defendant refused
to take a Breathalyzer test on the night of his arrest.
Because Richman’s testimony satisfied the three criteria
set forth in Padua, the court did not abuse its discretion
in permitting Richman to testify as an expert.11
II
The defendant next claims that the court improperly
admitted testimony that implied field sobriety procedures
have scientific validity. He specifically argues
that the state should have been prohibited from using
‘‘words like ‘tests,’ ‘results,’ ‘pass,’ ‘fail’ and ‘points’
when referring to the ‘walk and turn’ and ‘one leg stand’
tests because such words wrongly [implied] that the
matters had scientific validity and, thus, [prejudiced]
the defendant.’’12 Because this is an evidentiary matter,
our standard of review is the abuse of discretion standard.
See State v. Thompson, supra, 71 Conn. App. 20.
The defendant cites United States v. Horn, 185 F.
Sup. 2d 530 (D. Md. 2002), in support of his argument
that the testing language used by the state’s witnesses
to describe the field sobriety tests was admitted improperly.
In Horn, the United States District Court for the
District of Maryland held that testing language may be
used to reference a field sobriety test only after the
scientific validity of the test has been established. Id.,
559–61. Horn, however, is not binding on us, and we
decline the defendant’s invitation to adopt its holding.
Although there may be situations when language
imbues unscientific evidence with scientific significance,
using testing language to describe field sobriety
tests is not one of them. Words like ‘‘tests,’’ ‘‘results,’’
‘‘pass,’’ ‘‘fail’’ and ‘‘points’’ are commonly used by the
average person to describe unscientific topics. In this
context, the language is nothing more than descriptive
and does not automatically imply that the topic is scientific
in nature. We therefore hold that the state is not
required to lay a scientific foundation before it or its
witnesses use testing language to describe field sobriety
tests.
III
The defendant last claims that the court’s jury charge
was improper. Specifically, the defendant argues that
the court’s jury charge was deficient and prejudicial in
two respects: (1) it failed to instruct the jury that it
could use its common experiences in determining
impairment; and (2) it failed to instruct the jury that
‘‘field sobriety evaluations are not scientific evidence.’’
We are not persuaded.
These additional facts are relevant to our review of
the defendant’s claim. The defendant submitted a written
request to charge and proposed the following language:
‘‘You have heard . . . Newman testify [that] he
had [the defendant] perform certain field evaluations
to assess his balance, coordination, and ability to follow
directions. You may consider the observations made
by. . . Newman of the defendant’s performance on the
field evaluations. These evaluations are not scientific
evidence. Rather, the descriptions of [the defendant’s]
performance on the field evaluation[s] are for you to
consider in light of your common experiences in
determining whether the [d]efendant was intoxicated.’’
(Emphasis in original.) During the on the record charging
conference, counsel for the defendant made the
following statement: ‘‘If I may just have a moment? With
respect to my request to charge, I have in the second
paragraph a highlighted sentence, [which is that] these
evaluations are not scientific evidence. I think in light
of the court’s ruling in this matter that the sentence
should be stricken. With respect to the rest of the charge
. . . I would ask the court [to use my proposed
language].’’
The court denied the defendant’s request to charge
and used the following language regarding expert testimony
and impairment: ‘‘An expert is permitted not only
to testify to facts that he personally observed, but also
to state his opinion about certain circumstances. This
is allowed because an expert is, from his experience,
research and study, supposed to have particular knowledge
of the subject of the inquiry and be more capable
than a layperson . . . . No such testimony is binding
upon you, however, and you may disregard such testimony
. . . . It is for you to consider the testimony
with the other circumstances in the case and, using
your best judgment, determine whether you will give
any weight to it and, if so, what weight you will give
to it. . . . A person is under the influence of an intoxicating
liquor when, as a result of drinking such beverage,
that person’s mental, physical or nervous processes
have become so affected that the person lacks to an
appreciable degree the ability to function properly in
relation to the operation of his motor vehicle. Such
person’s physical or mental capabilities must have been
impaired to such degree that the person no longer has
the ability to drive a vehicle with the caution characteristic
of a sober person of ordinary prudence under the
same or similar circumstance.’’
‘‘The framework used to evaluate a challenge to a
jury instruction given by the trial court is well established.
Our review of the defendant’s claim requires
that we examine the court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . While a request to charge that is relevant
to the issues in a case and that accurately states
the applicable law must be honored, a court need not
tailor its charge to the precise letter of such a request.
. . . If a requested charge is in substance given, the
court’s failure to give a charge in exact conformance
with the words of the request will not constitute a
ground for reversal. . . . As long as [the instructions]
are correct in law, adapted to the issues and sufficient
for the guidance of the jury . . . we will not view the
instructions as improper. . . . Additionally, we have
noted that [a]n error in instructions in a criminal case
is reversible error when it is shown that it is reasonably
possible for errors of constitutional dimension or reasonably
probable for nonconstitutional errors that the
jury [was] misled.’’ (Citations omitted; internal quotation
marks omitted.) State v. Aviles, 277 Conn. 281,
309–10, 891 A.2d 935 (2006).
With this framework in mind, we turn to the defendant’s
claims. The defendant’s claim that the jury charge
was deficient because it failed to instruct the jury that
it could use its common experiences in determining
impairment is without merit. Although the court did
not adopt the precise language proposed by the defendant,
the court’s jury charge substantially covered the
defendant’s request. For example, instead of specifically
instructing the jury that ‘‘the descriptions of [the
defendant’s] performance on the field evaluation[s] are
for you to consider in light of your common experiences
in determining whether the [d]efendant was intoxicated,’’
the court instructed the jury that it ‘‘must consider
all the evidence in light of reason, experience,
common sense.’’ The defendant’s other language
regarding common experiences, expert testimony and
impairment was also substantially covered in the court’s
jury charge.
The defendant’s claim that the jury charge was
improper because it failed to instruct the jury that ‘‘field
sobriety evaluations are not scientific evidence’’ is not
reviewable because the defendant specifically withdrew
that request from his request to charge and, thus,
the issue was not raised or preserved at trial.13 See State
v. Miner, 197 Conn. 298, 305, 497 A.2d 382 (1985).
The judgment is affirmed.
In this opinion the other judges concurred.
1 The vehicle was stopped because it bore an Arizona marker plate that
was issued to another vehicle and because the defendant was not wearing
his seat belt. As a result, the defendant also was charged with improper
use of a license plate or marker in violation of General Statutes § 14-147
(c). He ultimately was convicted of violating § 14-147 (c). Neither the legality
of the stop nor his conviction under § 14-147 (c) has been challenged on
appeal.
2 Newman testified that he attended a forty hour law enforcement course
on operating a motor vehicle while under the influence of intoxicating liquor
and that the course taught him how to administer tests for determining
different levels of intoxication. He further testified that a common test
method is to ask the driver for his license or other identifying documents
while asking him a set of questions and, by the driver’s reactions, he can
determine whether he believes the driver is intoxicated.
3 Newman described the horizontal gaze nystagmus test as follows. The
horizontal gaze nystagmus test evaluates nystagmus, the involuntary jerking
or bouncing of the eyeballs, which can be exaggerated by alcohol consumption.
The subject is asked to follow a pen with his or her eyes. The administrator
looks for six signs of impairment. If four signs are identified, the subject
fails. Newman testified that while testing the defendant, he identified six
signs of impairment.
4 Newman described the walk and turn test as follows. The walk and turn
test evaluates a subject’s coordination, balance and mental agility by asking
the subject to perform multiple tasks simultaneously, usually listening to
directions and taking a specified number of steps in a straight line. The
administrator looks for eight signs of impairment. If two signs are identified,
the subject fails. Newman testified that while testing the defendant, he
identified five signs of impairment.
5 During his testimony, Newman described the one leg stand test as follows.
The one leg stand test evaluates the subject’s coordination, balance
and mental agility by asking the subject to lift one foot off the ground, point
the elevated foot forward and count to thirty. The administrator looks for
four signs of impairment. A subject automatically fails if he or she has to
put the elevated foot on the ground before counting to thirty. While testing
the defendant, Newman testified that the defendant had to put his foot down
three times.
6 While Newman was administering the walk and turn and the one leg
stand tests, Paul Bendler, a Naugatuck police officer, appeared on the scene.
Bendler also testified that he observed the defendant fail the walk and turn
and the one leg stand tests.
7 Included in the defendant’s list of words he argued should be prohibited
were ‘‘test,’’ ‘‘results,’’ ‘‘pass,’’ ‘‘fail’’ and ‘‘points.’’
8 Two witnesses and the defendant testified for the defense. Fazzino testified
that she was with the defendant on the night of his arrest and that he
was not intoxicated. Betty Schiethe, Fazzino’s mother, testified that she had
dinner with the defendant on the night of his arrest and that he was not
intoxicated. The defendant testified that he had two beers on the night of
his arrest, but that he had both of them at least two hours before operating
his motor vehicle. He also testified that he weighed approximately 195
pounds on the night of his arrest and that he had consumed a couple of
plates of food at dinner. Finally, he disputed the officers’ accounts of his
performance on the field sobriety tests.
9 The court prohibited Richman from testifying on the issue of the defendant’s
specific blood alcohol content.
10 In response to questioning from the state, Richman testified in relevant
part as follows:
‘‘Q. Doctor, assume for this question that a subject submits to the standard
field sobriety test. And the first test is horizontal gaze nystagmus. It’s conducted
by a trained person. That person detects six clues. Do you have an
opinion whether or not that person is impaired?
‘‘A. If there were six clues, my opinion, there are signs of impairment
seen through the eye movement. I need to find out what’s the cause of
that impairment.
‘‘Q. I’m sorry, walk and turn, how many clues total?
‘‘A. Walk and turn I believe is eight. You need to fail—four is a failure.
‘‘Q. One leg stand?
‘‘A. I think there are four. We need two to fail.
‘‘Q. Now, again, using the same set of circumstances, that subject submits
to, now this person submits to the walk and turn, four clues are detected;
do you have an opinion on whether or not it’s more probable or less probable
that he is impaired based on the two tests?
‘‘A. More probable.
‘‘Q. They submit to the walk—I’m sorry, one leg stand. They place their
foot down three times; what is that considered?
‘‘A. That’s a failure.
‘‘Q. All three tests added up after the third test, more likely or less likely
to be impaired?
‘‘A. I believe in my mind, as a clinician, it’s clearly more likely there is.
It’s like a headache, but now you’re nauseous with the headache and you
have dizziness with the headache. So, you start to have three things together
that gives you much more evidence that there’s something wrong and
there’s impairment.
‘‘Q. Now, doctor, taking that same example and the subject was asked if
he was ill, if he was injured, if he needed immediate medication. Was he
on medication? Was he diabetic? Does he need medication at this time?
Does he take insulin? And he admits no to all of those. And the person
administering the test detects an odor of alcohol on him, slurred speech
. . . again, after he denies all the medical issues, there’s an odor of alcohol,
slurred speech and admits to drinking alcohol. What would your opinion
be of this person at this point?
‘‘A. My opinion would be, one, that they’re impaired. Two, the most likely
cause until I can get a further test, most likely cause would be the central
nervous system depressant of alcohol.
‘‘Q. Same set of circumstances. The person [is] considered to fail all three
tests, admits to no medical issues, admits to drinking, smells of alcohol; do
you have an opinion within a reasonable degree of scientific certainty on
whether or not that person is operating the motor vehicle under the
influence?
‘‘A. In my opinion, he would be—that individual would be impaired and
should not be operating a motor vehicle, an airplane or boat.
‘‘Q. Likely cause based on?
‘‘A. Likely cause based on the questions that were answered as well
as the signs of impairment, that would be mostly—likely would be due
to alcohol.
‘‘Q. Thank you, doctor.’’
11 The defendant argues that the walk and turn and one leg stand tests
are within the common knowledge of lay jurors and, thus, Richman’s testimony
on the two tests should have been excluded. Even if this argument
is correct, Richman’s testimony was offered to show the combined significance
of the three field sobriety tests, which is not within the common
knowledge of lay jurors.
12 We will refer to the defendant’s list of words collectively as ‘‘testing
language.’’
13 In his brief, the defendant concedes that he withdrew the challenged
request from his request to charge. He argues that the claim is reviewable
because he is also challenging the court’s related evidentiary rulings. The
argument is without merit.