618 A.2d 1381
(10591)Appellate Court of Connecticut
LAVERY, LANDAU and SCHALLER, Js.
Convicted of operating a motor vehicle while under the influence of intoxicating liquor, the defendant appealed to this court claiming, inter alia, that the arresting officer lacked reasonable and articulable suspicion to stop his vehicle and that his arrest outside the officer’s jurisdiction violated the statute (§ 54-1f) granting arrest powers to members of local police departments. Held: 1. Because a reasonable and articulable suspicion can arise from conduct that alone is not criminal, the officer’s observation of the defendant’s car in the parking lot of a bar with its signal light on and his observation of the same vehicle a short time later weaving in its own lane supported the trial court’s determination that the stop of the defendant was valid. 2. The offense having occurred in the officer’s jurisdiction, the mere fact that the arrest occurred over the jurisdictional line did not undercut the validity of the arrest; the plain language of § 54-1f(c) provides that officers are authorized to pursue offenders outside their precincts in order to effect an arrest. 3. The defendant could not prevail on his claim that the state failed to prove that the road on which he operated his vehicle was a public highway as defined by the statute (§ 14-227a) applicable to operating a motor vehicle while under the influence of intoxicating liquor; the evidence established that Route 1, at the area in question, was a four lane divided highway, lined with business establishments, with traffic control signals and a posted speed limit and it was regularly patrolled by town police and maintained by the state department of transportation. 4. The trial court’s determination that there was sufficient testimony to support the finding that the defendant was weaving within his lane of traffic was not clearly erroneous. 5. The trial court’s denial of the defendant’s motion in limine to prevent introduction of evidence concerning the defendant’s refusal to submit
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to a chemical alcohol test was not reviewable; the defendant did not brief and analyze his claim that the admission of that evidence was barred by an administrative finding that he had not refused the test or his claim that the results of the test would have been irrelevant 6. The defendant’s claim, raised for the first time on appeal, that the state in summation improperly commented on facts not in evidence was not reviewable, he having failed to provide any analysis of that claim. 7. Construing the evidence in the light most favorable to sustaining the trial court’s judgment, the jury reasonably found that the defendant was guilty beyond a reasonable doubt.
Argued November 2, 1992
Decision released January 19, 1993
Substitute information charging the defendant with the crime of operating a motor vehicle while under the influence of intoxicating liquor, brought to the Superior Court in the judicial district of New Haven, geographical area number eight, and tried to the jury before Leavitt, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Affirmed.
Barry N. Silver, with whom, on the brief, was David A. Leff, for the appellant (defendant).
Susan C. Marks, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, Susan M. Naide, assistant state’s attorney, and Joseph Corradino, deputy assistant state’s attorney, for the appellee (state).
LANDAU, J.
The defendant appeals from the judgment of conviction, rendered after a trial to the jury, of operating a motor vehicle while under the influence of intoxicating liquor or drug or both in violation of General Statutes § 14-227a(a)(1).[1] The defendant claims that
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the trial court improperly (1) failed to grant the defendant’s pretrial motion to dismiss, (2) failed to grant the defendant’s motion for judgment of acquittal because there was insufficient evidence that the defendant had operated his vehicle on a public highway as required by General Statutes § 14-227a, and because the court improperly bound itself by a pretrial ruling, (3) permitted the arresting officer to refer to the defendant’s refusal to take a breathalyzer test, (4) permitted the state’s attorney to comment unfairly on the evidence in his closing argument, and (5) failed to grant the defendant’s motion alleging insufficiency of the evidence to support the guilty verdict. We affirm the judgment of the trial court.
The jury could reasonably have found the following facts. While Officer Kevin Potter of the Branford police department was on patrol on Route 1 in the town of Branford at about 11 p.m. on June 6, 1990, he observed an unoccupied vehicle in front of the Lakeside Cafe. The vehicle’s right signal light was on. After looking into the vehicle, he checked its registration through the police computer, found no record of the vehicle and left the area. Shortly thereafter, Potter saw the same vehicle traveling westbound on Route 1, swaying from side to side within the lane. Potter wanted to stop the vehicle to investigate because he believed that the operator might be intoxicated. The vehicle was on a curve on the road at the time, however, and recognizing that a stop at that point would be unsafe, Potter waited to halt the defendant’s vehicle until it reached a driveway. The stop occurred just over the town line of East Haven.
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Potter observed beer cans in the defendant’s car and noticed that the defendant’s eyes were red and glassy. The defendant admitted that he had been drinking. Potter found the defendant’s speech to be “somewhat slurred,” and decided to have the defendant perform several sobriety tests. Potter observed that the defendant could not perform the nine step walk or recite the alphabet. The defendant told Potter that he was going home to Guilford but Potter noted that the defendant was traveling in a direction away from Guilford. Finally, Potter performed a horizontal gaze nystagmus test, which the defendant failed. Because the defendant failed these tests, Potter placed him under arrest. At the police station, Potter requested the defendant to take a breathalyzer test. The defendant indicated that he would be over the legal limit and did not want to take the test.[2]
I
THE ARREST
The defendant challenges his arrest on two grounds: (1) that the police officer lacked reasonable and articulable suspicion to stop his vehicle; and (2) that the arrest in East Haven violated General Statutes § 54-1f.[3] We disagree.
A
“[T]he principles of fundamental fairness that are the hallmark of due process permit a brief investigatory detention, even in the absence of probable cause, if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.” State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484
(1990); see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In determining the constitutional
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validity of an investigatory stop, both the United States Supreme Court and our Supreme Court require a balancing of the nature of the intrusion upon personal security against the importance of the government interest inducing that intrusion. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604
(1985); State v. Mitchell, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S.Ct. 293, 98 L.Ed.2d 252 (1987). Our Supreme Court has also recognized the pervasive societal interest in the apprehension and punishment of drunken drivers and has found that “balancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor, we are persuaded that [brief detention] does not violate due process.” State v. Lamme, supra.
In justifying the intrusion, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21; State v. Cofield, 220 Conn. 38, 44, 595 A.2d 1349 (1991); State v. Whitfield, 26 Conn. App. 103, 110, 599 A.2d 21 (1991). In evaluating the validity of such a stop, courts consider whether, in light of “the totality of the circumstances — the whole picture,” the police officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Mitchell, supra, 195. Review of a trial court’s determination of whether a reasonable and articulable suspicion exists “involves a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355
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(1992). “The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” State v. Cofield, supra.
In this case, the police officer observed the car the defendant was driving in the parking lot of a bar with a signal light turned on. Several minutes later, the officer observed that same car weaving in its lane. Putting these facts together, under the totality of the circumstances, the officer had an objective basis to suspect that the defendant may have been operating a motor vehicle under the influence of liquor or drugs or both.[4] The facts of this case support the trial court’s determination that a reasonable and articulable suspicion existed. Therefore, the trial court’s determination is not clearly erroneous. “The facts detailed above justified the defendant’s detention for the limited intrusion of field sobriety testing to confirm or dispel the officer’s suspicion.” State v. Gruver, 27 Conn. App. 370, 376, 606 A.2d 39 (1992). This was a valid Terry stop.
The defendant also emphasizes that Potter did not observe him commit a violation before the investigative stop. This fact is irrelevant, however, because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. Our jurisprudence has long recognized that “furtive” movements are not necessary to justify a limited intrusion. See, e.g., State v. Corbuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 925 S.Ct. 677, 30 L.Ed.2d 664 (1972) (stop legally justified after a police officer noted the circuitous route the vehicle was taking in a commercial area which was ordinarily deserted in
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the early morning). Indeed, in Terry v. Ohio, supra, 30, the Supreme Court held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for . . . other’s safety,” he is entitled to a limited intrusion to confirm or dispel his suspicion. (Emphasis added.)
B
The defendant next claims that his arrest was illegal because Potter violated General Statutes § 54-1f[5]
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when he arrested the defendant outside Potter’s jurisdiction. We disagree.
Section 54-1f(a) provides the authority by which a peace officer “shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . .” The defendant relies on the words in their jurisdiction to support his argument that any arrest, for a misdemeanor, effected outside the jurisdiction of the officer would violate § 54-1f(a). The defendant’s reliance is misplaced. The words “in their jurisdiction” modify the phrase “for any offense,” not the word “arrest.” Therefore, the offense occurs when facts lead to a reasonable and articulable suspicion that a crime is being committed, in that jurisdiction, which is later confirmed, albeit outside the jurisdictional boundary. In this case, the facts that led to a reasonable and articulable suspicion occurred in the officer’s jurisdiction. Thus, although the arrest did not occur in that jurisdiction, the offense occurred in that jurisdiction. If we were to interpret the statute as the defendant suggests, a peace officer could not arrest a person who committed a misdemeanor in his jurisdiction if that person was fortunate enough to get beyond the jurisdictional line. “When a statute’s meaning is ambiguous, compelling principles of statutory construction . . . require us to construe a statute in a manner that will not thwart its intended purpose or lead to absurd results. If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 28 Conn. App. 708, 613 A.2d 1344, cert. granted, 224 Conn. 911, 617 A.2d 168 (1992).
The defendant’s interpretation also ignores the plain language of § 54-1f(c), which provides that “[m]embers
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of any local police department . . . who perform criminal law enforcement duties, when in immediate pursuit of one who may be arrested under the provisions of this section, are authorized to pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest. Such person may then be returned in the custody of such officer to the precinct in which the offense was committed.” General Statutes § 54-1f(c). “We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Turner v. Turner, 219 Conn. 703, 713, 595 A.2d 297
(1991). Subsection (a), according to the defendant’s interpretation, would not allow an officer who witnesses the commission of a misdemeanor in his jurisdiction to give chase beyond the borders of his jurisdiction because that officer would be unable to arrest the defendant in the officer’s jurisdiction. Therefore, the defendant’s construction of subsection (a) would render meaningless subsection (c), as applied to subsection (a). The language of the statute indicates no such limitation, nor will we accord such an interpretation to § 54-1f. Thus, the defendant’s arrest is not illegal under § 54-1f.
We have previously determined that the arresting officer had a reasonable and articulable suspicion to make an investigatory stop of the defendant for the defendant’s actions while in the officer’s jurisdiction. The mere fact that the actual stop and arrest occurred just over the line in the town of East Haven will not undercut the validity of the arrest. The language of § 54-1f(c) is clear. The requirement of subsection (a), therefore, is that the offense, or the actions that lead to a reasonable and articulable suspicion that an offense has or is about to be committed, occur in the officer’s jurisdiction.
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This case is also distinguishable from State v. Kuskowski, 200 Conn. 82, 510 A.2d 172 (1986). In Kuskowski, an officer of the Brookfield police department was on patrol several hundred yards from the Bridgewater town line when she noticed a car with its interior lights on parked near a lake in Bridgewater. The officer crossed into Bridgewater to investigate. When she came upon the car she found that the defendant had passed out after “freebasing” cocaine.
Our Supreme Court held that because this was a felony arrest effected under § 54-1f(b), it did not matter where the arrest took place. The court held that § 54-1f(b) does not “limit the authority to make warrantless felony arrests to any political subdivision of the state. Subsection (b) stands in sharp contrast to subsection (a), which concerns the authority to make warrantless misdemeanor arrests . . . . Subsection (a) provides that members of a local police department `shall arrest, without previous complaint and warrant, any person for any offense in the their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others.'” (Citations omitted; emphasis in original.) Id., 85-86. At no time in Kuskowski did the arresting officer observe the defendant in her jurisdiction. In the case before us, however, the arresting officer conducted the investigatory stop that led to the defendant’s arrest, on the basis of the defendant’s actions in that officer’s jurisdiction. This is not a situation in which a peace officer witnesses a misdemeanor committed in another jurisdiction, and crosses into that jurisdiction to effect an arrest. Therefore, the officer was well within the ambit of the statute when he stopped and then arrested the defendant in East Haven on the basis of a reasonable and articulable suspicion developed from the defendant’s actions while in the officer’s jurisdiction.
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II
PUBLIC HIGHWAY
In his second claim, the defendant asserts that the state failed to prove beyond a reasonable doubt that Route 1 is a public highway. We disagree.
Each essential element of the crimes charged must be proven beyond a reasonable doubt. State v. Brown, 199 Conn. 14, 21, 505 A.2d 690 (1986). “Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot `constitutionally stand,’ as it is violative of due process under the fourteenth amendment.” Id. We presume that the jury uses common sense in its deliberations; State v. Mazzetta, 21 Conn. App. 431, 436, 574 A.2d 806, cert. denied, 216 Conn. 807, 580 A.2d 64 (1990); and is not limited to consideration of the direct evidence but is free to draw reasonable, logical inferences from the facts proved. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). A conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) while under the influence of intoxicating liquor or drugs or both. General Statutes § 14-227a; State v. Lonergan, 213 Conn. 74, 80, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990). The defendant does not dispute the first element of this crime, and we will deal with the third element later in this opinion.
“Public highway” is not a term of art. See General Statutes § 14-1(34). The plain meaning of the word “highway” is “a main road or thoroughfare; hence, a road or way open to the use of the public. [T]he essential feature of a highway is that every traveler has an
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equal right in it with every other traveler.” New Haven v. United Illuminating Co., 168 Conn. 478, 485, 362 A.2d 523 (1975); Laufer v. Bridgeport Traction Co., 68 Conn. 475, 488, 37 A. 379 (1897). Thus, it is a way over which the public at large has a right to pass. Id. The question of whether a roadway is a public highway is a question of fact. Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984).
On the basis of Potter’s testimony, the jury could have reasonably found that Route 1, at the area in question, was a four lane divided highway used by the defendant to travel from a cafe to his house. Further, it was reasonable to conclude, on the basis of the evidence adduced at trial, that this roadway was lined with business establishments, had traffic control signs, stop signals and a posted speed limit, was regularly patrolled by town police and was maintained, at least on some occasions, by the state department of transportation. All of these facts justify an inference that Route 1 was not a private way, over which only a limited number of persons have a right to pass, but rather was open to public use. See Wamphassuc Point Property Owners Assn. v. Public Utilities Commission, 154 Conn. 674, 680, 228 A.2d 513 (1967). The trial court appropriately allowed the jury to determine the issue concerning a public highway, and the jury’s determination is reasonable and supported by the facts proved.[6]
III
JUDGMENT OF ACQUITTAL
The defendant challenges the procedure by which the trial court reached its decision on the motion for
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judgment of acquittal. He claims that the court did not independently consider the evidence presented at trial on this motion and made improper factual determinations regarding the defendant’s conduct before the stop. He asserts that the pretrial court, Thompson, J., predicated its finding of reasonable and articulable suspicion on a belief that Potter had observed a motor vehicle “violation” and that Potter’s trial testimony revealed that no violation had occurred when the officer decided to conduct the investigative stop. The record does not support this claim.
The trial court considered Potter’s testimony of the events at the pretrial and trial stages and did not find the differences to be so extreme as to require a different conclusion on the issue of reasonable and articulable suspicion.[7] Furthermore, the trial court’s
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determination that there was sufficient evidence to support a finding that the defendant was weaving within the lane was not, as the defendant claims, clearly erroneous, as the standard demands. “On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous . . . . The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985). There was sufficient evidence to support a finding that the defendant was weaving in his lane.
IV
THE DEFENDANT’S STATEMENT
Before trial, the defendant filed a motion in limine, seeking to prohibit the state from introducing any evidence of his refusal to consent to a chemical alcohol test. The defendant claimed that a department of motor vehicles hearing officer previously determined that there was insufficient evidence of refusal by the defendant and thus the results were inadmissible and further that the results of the tests were irrelevant to the crime charged. The trial court granted the defendant’s pretrial motion, ruling that the state should not be able to reap a benefit in the form of a jury instruction from
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the refusal when the hearing examiner had found that there was insufficient evidence of such a refusal.
During the state’s case-in-chief, the trial court reconsidered the issue and indicated that although the court would not allow a jury instruction regarding inferences that could be drawn from the refusal, the court would permit Potter to refer to the refusal in his testimony.[8]
The defendant claims that the effect of the trial court’s changing its ruling and allowing the jury to hear the testimony compromised “the defendant’s right to a fair trial and due process of law as guaranteed by the State and Federal Constitutions.”
Although the defendant asserts that his rights under both the state and federal constitutions were transgressed, he does not provide an analysis of his claim. Both this court and our Supreme Court have declined
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to review constitutional claims, deeming them to have been abandoned, when the defendant has not briefed and analyzed the claim. State v. Tweedy, 219 Conn. 489, 510 n. 17, 594 A.2d 906 (1991); State v. Johnson, supra. That declination does not mean we are not able to review such a claim if we choose to do so. State v. Hoeplinger, 27 Conn. App. 643, 652 n. 2, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). We choose not to review this claim.
V
THE STATE’S SUMMATION
The defendant next claims that the state, during its closing statement, made two comments referring to facts not in evidence.[9] Following each comment, the
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defendant’s objection was sustained, the remarks were ordered stricken, and a curative instruction was given by the court charging the jury not to consider anything not in evidence nor draw any inference from any facts not in evidence. The defendant made no further objections. He claims that these statements deprived him of his rights under the state and federal constitutions to a fair trial and process of law. Again, the defendant furnishes this court with no analysis in his brief other than his bare assertion. We decline to review his claim.[10]
VI
SUFFICIENCY OF THE EVIDENCE
The defendant argues that the evidence adduced at trial was insufficient to sustain a conviction for operating a vehicle under the influence of liquor. We disagree.
“Appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task: We must first review the evidence construing it in the light most favorable to sustaining the trial court’s verdict . . . . We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that
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the cumulative effect of the evidence established guilt beyond a reasonable doubt . . . .” (Citations omitted; internal quotation marks omitted.) State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 937 (1989).
Construing the evidence in the light most favorable to sustaining the trial court’s judgment, we conclude that the jury reasonably found that the defendant was guilty beyond a reasonable doubt. The evidence reasonably supported a finding that the defendant operated a motor vehicle on a public highway while under the influence of intoxicating liquor or drugs or both. See General Statutes § 14-227(a)(1).
The judgment is affirmed.
In this opinion the other judges concurred.
(1990).