Drunk Driver Cries Prosecutorial Misconduct in Wake of 2 Year Prison Sentence

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Asking jurors whether, if they had been in defendant's shoes, they would have immediately informed police that they were not the driver, does not constitute prosecutorial impropriety.

The jury reasonably could have found the following facts. At approximately 2 a.m. on Aug. 21, 2011, Robert Hazen was helping another state trooper during a traffic stop on Route 44 in North Canaan. Hazen heard tires screech and saw a sports utility vehicle make a U-turn and pull over to the side. Hazen took less than one minute to drive to the sports utility vehicle and to request that defendant produce his driver's license and registration. Hazen allegedly smelled alcohol and asked defendant whether he had been drinking. Defendant admitted that he had consumed three drinks. Defendant's speech was slurred, and his eyes appeared glassy. Defendant failed field sobriety tests and refused to take a breath test. At trial, the primary issue was whether defendant actually drove the sports utility vehicle. Defendant's witness, Blake Balaam, testified that he and defendant worked at a restaurant until midnight. After they played cards at Balaam's house, Balaam claimed that he drove the sports utility vehicle to Route 44, made a U-turn, parked and exited. Balaam claimed that he entered his girlfriend's vehicle, and his girlfriend drove him home. Hazen and other state troopers testified that they did not observe the girlfriend's motor vehicle. Nor had Hazen seen Balaam exit the sports utility vehicle, as alleged. Hazen claimed that on Aug. 21 defendant did not immediately deny that he actually operated the sports utility vehicle. A jury convicted defendant on charges of operating under the influence and operating when his license had been suspended.

The trial court sentenced defendant to two years in prison, execution suspended after six months. Defendant appealed and argued that the trial court wrongly admitted evidence that he remained silent, after he was informed about his Miranda rights. Hazen's response on redirect examination was restricted to defendant's silence during the traffic stop, which was before Miranda warnings were issued, and was admissible. Hazen's post- Miranda testimony was restricted to defendant's decision not to take a breath test at the police station. Defendant failed to prove that his due-process rights to a fair trial were violated, as alleged. The prosecutor's remarks about defendant's silence did not constitute prosecutorial impropriety. The prosecutor was allowed to comment about the weakness of defendant's case and to make arguments based on facts in evidence and on reasonable inferences drawn from those facts. Defendant failed to prove that the prosecutor's comments went beyond permissible argument. Asking jurors whether, if they had been in defendant's shoes, they would have immediately informed police that they were not the actual driver, did not constitute prosecutorial misconduct. Not all arguments that ask jurors to place themselves in defendant's shoes are improper. Defendant, wrote the court, "failed to establish how such comments appealed to the jurors' emotions or otherwise pressured them to base their determination of guilt on something beyond the evidence presented at trial." Defendant also failed to prove the prosecutor wrongly commented on a fact not in evidence, because she asked whether an individual who was innocent would refuse to take a breath test, knowing about public transportation, or the lack thereof, in northwest Connecticut. The prosecutor's comment properly asked jurors to apply their knowledge about transportation in that area of the state to defendant's case. Judgment affirmed.

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Source: J. Gruendel, DUI Defendant Failed To Prove Prosecutorial Misconduct, 41 Conn. Law Tribune 38, Sept. 21, 2015, at 18