Posts tagged with "abuse of discretion"

Trustee Interpretation of Ambiguous Trust Provisions will not be Changed by a Court Without Evidence of a Clear Abuse of Trustee Discretion

In a recent case before the Superior Court, four trust beneficiaries filed a three-part complaint against the trustees of a trust created by their mother.  The complaint alleged breach of fiduciary duty, unjust enrichment, and other charges. The trial court ruled that the trustees had properly distributed the trust interests and entered judgment in their favor.

In 1953, a trust indenture known as the Hembdt Trust was drafted with assets consisting of royalty interests in oil, gas and mineral rights.  During her lifetime, the settlor and beneficiary of this trust (“the decedent”) married and had ten children.  Upon her death, the terms of the trust provided that the royalty interests would pass to “his or her legal representatives, heirs at law or next of kin in accordance with the provisions of law applicable to the domicile of the deceased beneficiary.”  In 1967, the decedent died. Pursuant to her will, several testamentary trusts were created, including a testamentary trust for the benefit of her husband (“marital trust”) and a trust for her children (“children’s trust”).  The trustees and executors of the decedent’s will determined that the provision in the Hembdt Trust required the trust’s royalty interests to pass into her estate which, in accordance with her will, resulted in these interests being distributed in a 54/46 ratio between the marital trust and the children’s trust.

The beneficiaries of the children’s trust argued that the entirety of the royalty interest should have been distributed to them as the decedent’s heirs at law because the term “legal representatives” in the Hembdt Trust provision, used under the circumstances provided, could only be interpreted to mean the children of the decedent.  The decedent’s husband, in his capacity as a fiduciary of the trusts, argued that the beneficiaries’ interpretation was inconsistent with the language of the trust instrument and the law.  He argued that the term “legal representatives” was used in conjunction with “heirs at law” and “next of kin;” therefore, the clear intent of the Hembdt Trust provision was that upon the death of the individual beneficiary, his or her interest would pass to: (1) the beneficiary’s legal representatives, which would be the beneficiary’s executors, if the person died testate, to be administered according to the beneficiary’s will, or the beneficiary’s administrators, if the person died intestate and a probate estate was opened; (2) the beneficiary’ heirs at law if the person died intestate and no probate estate was opened; and (3) the beneficiary’s next of kin if there were no heirs at law. The decedent’s husband further argued that if all three conditions existed, then the distributions would have to be in accordance with Connecticut law, which requires that, when a decedent leaves both a spouse and children, they both inherit.  Finally, the decedent’s husband argued that Connecticut law requires that if a decedent leaves a will, a distribution is made according to the will.   Conn. Gen. Stat. § 45a-431.  The remaining trustees adopted the arguments of the decedent’s husband.

According to Connecticut case law, a court’s role in the construction of a trust instrument is to determine the meaning of what the grantor stated in the trust instrument and not to speculate upon what the grantor intended to state in the instrument. Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 278-79, 170 A.2d 130 (1961).  Language in the trust instrument is to be accorded its common, natural and ordinary meaning and usage.  WE 470 Murdock, LLC v. Cosmos Real Estate, LLC, 109 Conn.App. 605, 609, 952 A.2d 106, cert. denied, 289 Conn. 938, 958 A.2d 1248 (2008) (internal quotation marks omitted). Furthermore, no language will be construed as to remove a trustee from equitable control; courts may intervene only to protect and preserve the trust in circumstances where the trustees have abused their discretion.  Gimbel v. Bernard F. & Alva B. Gimbel Foundation, Inc., 166 Conn. 21, 34, 347 A.2d 81 (1974)

Connecticut case law has established that the phrase “legal representatives” in a testamentary instrument is an ambiguous or equivocal term. Smith v. Groton, 147 Conn. 272, 274–75, 160 A.2d 262 (1960).   In interpreting the trust provisions, the court determined that the language did not permit the decedent’s beneficial interest to pass to each of the three categories (“legal representatives, heirs at law and next of kin”) or to pass to different recipients depending on an exercise of discretion (“legal representatives, or heirs at law, or next of kin”).  For that reason, the court found that the terms “legal representatives,” “heirs at law,” and “next of kin” did not conflict and that the provision required that the decedent’s beneficial interest pass to the recipients in the order clearly listed the trust instrument.  Therefore, the trustees did not abuse their discretion in determining that the royalty interests passed to the executors, as the decedent’s legal representatives, to be distributed to the marital trust and children’s trust in accordance with the decedent’s will.

Because the trial court did not find that the trustees of the decedent’s trusts abused their discretion, the court refused to upset their determination of how the decedent’s interests should be distributed.

Should you have any questions relating to wills, trusts, estates and other personal asset protection issues, please do not hesitate to contact Attorney Susan Maya, at SMaya@Mayalaw.com or 203-221-3100, and Attorney Russell Sweeting, at RSweeting@Mayalaw.com or 203-221-3100, in the Maya Murphy office in Westport, Fairfield County, Connecticut.

Heath v. Heath, CV094044709S, 2012 WL 2477953 (Conn. Super. Ct. June 5, 2012)

Stolen Dealer Plates Found Relevant and Probative in Vehicle Retagging Scheme

In a recent criminal law matter, the Appellate Court of Connecticut affirmed a defendant’s conspiracy and larceny convictions, finding that evidence of stolen dealer plates was properly admitted.

This case arose from an incident that occurred on February 4, 2008. Months before, state police began investigating an operation where vehicles stolen in New York were “retagged” and sold in Connecticut. A detective went undercover posing as a buyer and agreed to purchase two stolen vehicles for $20,500. The defendant was present when dealer plates belonging to his previous employer were attached to one car, and he drove the second vehicle to the exchange point in Fairfield. Police moved in and arrested the defendant and several other individuals involved. Troopers observed materials used in the retagging process on the defendant’s person, as well as inside nearby vehicles driven by coconspirators.

The defendant was charged with two counts of conspiracy to commit larceny in the first degree and two counts of larceny in the first degree. Prior to trial, the defendant filed a motion seeking to exclude evidence of the stolen dealer plates. He argued that it was irrelevant, and the probative value, if any, was far outweighed by the prejudicial effect it would have on the jury. The State countered that such evidence went to intent and to show the defendant was a knowing participant in the conspiracy rather than an unwitting passenger.

The court allowed the evidence and attendant testimony, noting it was relevant to a material fact in the case. Thus, for example, a detective “opined that, based on her training and experience, a former employee would have better access than a stranger to the dealer plates because of his familiarity with the dealership and the knowledge of its layout.” The defendant was subsequently found guilty on all counts and appealed his convictions, arguing that evidence of the dealer plates was improperly admitted because it was not relevant, and alternatively that it was unfairly prejudicial.

To convict a defendant of conspiracy under Connecticut General Statutes § 53a-48, the State must show that an agreement to commit a crime was made between two or more people, one of whom acts overtly to further the conspiracy. This is a specific intent crime, and the State must prove that the conspirators “intended to agree and that they intended to commit the elements of the underlying offense.” Because it is difficult to ascertain a person’s subjective intent, it is often inferred from circumstantial evidence and rational inferences. Evidence is relevant so long as it has a “logical tendency to aid [the judge or jury] in the determination of an issue” to even the slightest degree, so long as it is not unduly prejudicial or merely cumulative.

In this case, the Appellate Court found that the dealer plates “had a logical tendency to show a connection between the defendant and the larcenous scheme,” as well as the requisite intent to commit conspiracy to commit larceny. Indeed, this evidence countered the defendant’s assertion that he was an innocent bystander. While the evidence itself might have been weak, this was an issue of its weight, not its relevance. Therefore, the trial court did not abuse its discretion by allowing it.

There are many grounds for excluding relevant evidence, such as the risk of unfair prejudice. Naturally, all evidence against the defendant is damaging and thus prejudicial, so the appropriate inquiry is whether the proffered evidence will “improperly arouse the emotions of the jury.” In this case, the defendant argued that the jury may have concluded that the dealer plates, which belonged to his previous employer, were stolen, a fact which they would then impermissibly use to infer he committed the presently charged offenses. The Appellate Court stated that while such impermissible inferences may have been drawn, the trial court has broad discretion in weighing the probative value versus prejudicial impact, a decision reversible only upon showing an abuse of discretion or manifest injustice. Based on the facts of this case, the Court could not conclude that the trial court abused its discretion; therefore, the defendant’s claims on appeal failed.

When faced with a charge of larceny, burglary, conspiracy, or attempt, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Defendant’s Conviction for Misconduct with a Motor Vehicle Upheld; Sufficient Evidence to Establish Requisite Mental State

In a criminal law matter decided this month, the Appellate Court of Connecticut affirmed a defendant’s conviction for misconduct with a motor vehicle, finding sufficient evidence to convict and that the trial court did not abuse its discretion in admitting potentially prejudicial evidence.

This case arose from an incident that occurred on the night of December 2, 2007. Despite snow and freezing rain that day, the defendant drove with his friends to an unplowed parking lot after dinner and performed a “donut” around a light pole. Afterward, he traveled along a road where passing was not permitted, the speed limit was 45mph, and there was only one travel lane in each direction. The defendant attempted to pass a slow-moving vehicle but lost control of the vehicle. The car veered off the road and two passengers were ejected, one sustaining head injuries that led to his death.

The defendant was charged with second-degree manslaughter, third-degree assault, and reckless driving. As an alternative to the manslaughter charge, the court charged the jury with lesser included offenses, including misconduct with a motor vehicle. Defense counsel filed a motion in limine seeking to exclude testimony regarding the donut. He argued that the evidence was not relevant, involved uncharged misconduct, and the potential for prejudice far outweighed its probative value. The State countered that because the donut was performed shortly before the accident, it was probative and relevant to mental state, and served as evidence that the defendant was aware of the poor driving conditions. The trial court denied the motion, stating, “[W]hat happened a matter of minutes before the actual incident is part and parcel of the incident itself.”

The defendant was found guilty of reckless driving and misconduct with a motor vehicle, in violation of Connecticut General Statutes (CGS) §§ 14-222(a) and 53a-57(a). He appealed his conviction, arguing that the State provided insufficient evidence of the requisite mental state for misconduct with a motor vehicle, and the court improperly allowed evidence of the donut into the record.

A criminal defendant is guilty of misconduct with a motor vehicle if the State proves that he caused the death of another person through criminally negligent operation of his motor vehicle.

A person acts with “criminal negligence” with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation… (CGS § 53a-3 (14))

A defendant does not have to be speeding in his vehicle to violate CGS § 53a-57(a). Relevant evidence makes a material fact more or less probable than it would be without such evidence. Even if relevant, evidence may be excluded where its probative value is outweighed by the danger of undue prejudice. However, mere prejudice is not enough, because “[a]ll adverse evidence is damaging to one’s case.”

In this case, the Appellate Court was not persuaded by the defendant’s arguments. It found that there was ample evidence that the defendant operated his vehicle in a criminally negligent behavior, and that he was not speeding at the time was not dispositive. Furthermore, the Court agreed that the evidence was relevant, and the probative value outweighed the danger of undue prejudice. Its admission as evidence was not an abuse of discretion by the trial court. Therefore, the judgment was affirmed.

When faced with a charge of reckless driving or misconduct with a motor vehicle, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Where Defendant Created Multiple Problems for Representation, Court Determined Counsel Did Not Render Ineffective Assistance

In a recent criminal law matter, a Superior Court of Connecticut denied a petition for a writ of habeas corpus where petitioner could not successfully argue ineffective assistance of trial counsel.

In this case, the petitioner pled guilty to first-degree manslaughter, operation under suspension, and evading responsibility. Pursuant to the plea agreement, he faced fifteen years incarceration, execution suspended after four years, with five years’ probation. The petitioner asked that sentencing be briefly postponed to “[allow him] to get his affairs in order.” The request was granted, though the trial court stressed the ramifications for failure to appear at sentencing.

The petitioner did not appear at court on the rescheduled sentencing date, and a warrant was issued for felony failure to appear, which has a maximum potential sentence of five years. Soon thereafter, the petitioner was brought before the court on this warrant, and defense counsel negotiated a plea agreement with the State: a two-year non-suspended sentence to be served consecutively to the original sentence. When the court initiated a plea canvass, the petitioner stated, “I want to know if I can try my case over because I’m not guilty for this, ma’am.” The judge declined to accept the guilty plea and continued the matter.

At the next court date, the State withdrew the two-year sentence and instead sought the imposition of three years. The petitioner accepted this new agreement and was sentenced to fifteen years incarceration, execution suspended after seven years, with five years probation. He filed a petition for a writ of habeas corpus, claiming ineffective assistance of counsel.

When a court considers an ineffective assistance claim, it applies a two-part test from Strickland v. Washington: deficient performance and prejudice to the outcome of the case. A habeas petition can be denied on either ground. “There is no constitutional right for a defendant to enter into a plea agreement with the state.” Courts are free to accept or reject a plea agreement, and such decisions will be overturned only upon a showing of abuse of discretion. However, a court is within its discretion to deny an agreement “when there is even the slightest manifestation of a hesitance or a reluctance on part of a defendant to enter into a plea.”

In this case, the Superior Court determined that defense counsel did not provide ineffective assistance, but instead pointed to the petitioner as “his own worst enemy.” As the Court explained, the petitioner “grossly complicated” his defense counsel’s representation: he failed to appear at court, then “created a problem with that plea canvass by indicating he did not want to plead guilty because he didn’t commit the offense.” In addition, the State was not obligated to enter into a plea agreement with the petitioner, and that it took back the initial two-year agreement was not illegal. Furthermore, the Superior Court determined that the judge did not abuse his discretion in declining to accept the plea agreement, noting that “he would have been remiss had he not done so.” Therefore, the Superior Court denied the writ of habeas corpus petitioner.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Court’s Limiting Instruction Minimized Prejudicial Impact of Contested Evidence

In a recent criminal law matter, the Appellate Court of Connecticut rejected a defendant’s claims of improperly-admitted evidence and prosecutorial impropriety, following his conviction in a DUI-related case. The defendant’s first claim is discussed in this article.

This case arose from an incident that occurred on July 3 and 4, 2006. Officers initiated a traffic stop after observing the defendant driving erratically, and after personal interaction they determined the defendant was highly intoxicated. They placed him under arrest for operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of Connecticut General Statutes (CGS) § 14-227a. The officers also arranged for the defendant’s truck to be towed. During the booking process, officers learned that the defendant’s driver’s license was suspended at the time of the traffic stop. Therefore, they charged him with operating a motor vehicle with a suspended license (OMVSL) in violation of CGS § 14-215. The following morning, an officer saw the defendant being driven to the tow truck company that had towed the defendant’s truck the previous night. There, the officer observed the defendant driving his truck from the parking lot exit, so he initiated a traffic stop and issued a summons for OMVSL.

At trial, the State sought to include redacted versions of the two suspension notices, but defense counsel objected. Citing un-redacted portions that showed duration of the suspensions, counsel argued, “[A]ny reasonable person would infer from the blacked out [portion] that the suspension notice [was] alcohol related, and… that would be unduly prejudicial for [the defendant].” The court overruled the objection, stating the argument involved mere speculation. The court later gave a limiting instruction to the jury that they were not to speculate as to the reasons for the instructions; rather, the suspension notices were only being used by the State to allege that the defendant was under suspension.

The defendant was convicted on all counts, and after sentencing he filed an appeal. He argued, in part, that the probative value of the suspension notices was outweighed by their prejudicial impact. He argued that inclusion of the notices would lead the jury to believe he was a “chronic drunk driver,” which would be highly prejudicial to the present case.

The trial court has discretion to determine whether the probative value of evidence is outweighed by its prejudicial impact. Such findings are reversed only upon the showing of an abuse of discretion or manifest injustice. In this case, the Appellate Court determined that the notices were relevant because they tended to prove that the defendant’s license was suspended on July 3 and 4, 2006. The defendant failed to provide any compelling basis to indicate they were unduly prejudicial. Assuming, for the sake of argument, that their admission into evidence was unduly prejudicial, the limiting instruction given by the court lessened or even eliminated any adverse impact on the outcome of the trial. Therefore, the court did not abuse its discretion by allowing the notices into evidence.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

“Mommy Just Got Into a Little Accident,” Along With Other Evidence, Was Sufficient to Find That DUI Driver Operated her Car

In a recent criminal law matter, a Superior Court of Connecticut dismissed the plaintiff’s license suspension appeal, stating that the hearing officer had sufficient evidence to find that the plaintiff “operated” her motor vehicle.

This case arose from an incident that occurred on December 12, 2010. Police responded to a complaint from a woman (neighbor), who stated that the plaintiff’s vehicle backed out of her driveway across the street and struck her car. Officers proceeded up the driveway in question and saw the plaintiff, who was accompanied by her four-year-old son, “fumbling with her keys and struggling to keep her balance as she attempted to open her garage.” The plaintiff was visibly intoxicated, and when the officer asked the son what happened, he responded, “Mommy just got into a little accident.” Officers believed the plaintiff was so inebriated that administering the field sobriety tests would be unsafe. They arrested the plaintiff and transported her to police headquarters, where two breath tests revealed blood alcohol contents of 0.2181 and 0.2097, two-and-a-half times the legal limit. A subsequent inspection of the plaintiff’s vehicle revealed damage consistent with that from the neighbor’s car.

The plaintiff was charged with driving under the influence in violation of Connecticut General Statutes (CGS) § 14-227a. The Department of Motor Vehicles (DMV) sent her a notice of suspension, and she requested an administrative hearing. The hearing officer made four statutory findings pursuant to CGS § 14-227b(g), and given the plaintiff’s history of suspensions, ordered that her license be suspended for two years and six months. The plaintiff appealed, stating that the hearing officer’s conclusion on the fourth criteria of CGS § 14-227b(g), “operation,” was without factual support. She contested the neighbor’s identification of her as the driver and use of her son’s hearsay statement, as well as the fact that police did not see her driving.

When a plaintiff contests the decision of a DMV hearing officer, they have the burden of proving that the decision was arbitrary and an abuse of discretion. A decision that is reasonably supported by the evidence will be sustained by a reviewing court. In addition, hearing officers have broad discretion in accepting or discrediting witness testimony, and are not bound to the strict rules of evidence regarding hearsay. Therefore, hearing officers have the authority to rely on hearsay of operation so long as the testimony is relevant and material to that finding.

In this case, the Superior Court found that the hearing officer had ample evidence that the plaintiff operated her car. The officers personally saw the plaintiff in possession of her keys outside the garage in which her car was located. Given the coinciding damage between both cars, along with the neighbor’s and son’s statements, which the hearing officer was free to accept, there was sufficient evidence to find that the plaintiff operated her motor vehicle. Therefore, the hearing officer did not abuse his discretion, and after addressing the plaintiff’s additional claims, the Superior Court dismissed her appeal.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Despite Trial Court’s Abuse of Discretion, Defendant Failed to Prove Specific Harm Warranting Reversal

In a recent criminal law matter, the Appellate Court of Connecticut affirmed judgment after a defendant, convicted of DUI, unsuccessfully claimed that his constitutional rights were violated when the trial court arbitrarily denied his motion for a minor continuance.

This case arose from an incident that occurred on November 22, 2003, in Stratford. The defendant crashed his vehicle into an unoccupied parked car, and responding officers noticed visible signs of intoxication. The defendant failed several field sobriety tests and was arrested for operating a motor vehicle while under the influence (OMVUI) of alcohol in violation of General Statutes § 14-227a(a)(1). The defendant wanted a jury trial, and during jury selection, the defendant used up all his peremptory challenges. When Juror T was selected as the alternate, defense counsel challenged him for cause. The reason given was because Juror T’s vehicle had been rear-ended by an intoxicated driver, he had been the passenger of an intoxicated driver, and he managed an alcoholic employee. The court would not excuse Juror T for cause, and defense counsel did not seek any additional peremptory challenges.

Due to a miscommunication, a regular juror did not appear at court on the scheduled trial date. However, because the alternate was present, the court stated that the trial would proceed that afternoon. Defense counsel immediately objected and requested a continuance to the next morning, when the regular juror would be available. The court denied the request “without giving any reason… other than that the alternate juror was selected in the same manner as the regular jurors were selected.” The defendant was convicted of OMVUI and thereafter appealed, arguing that the court abused its discretion when it denied the motion, therefore depriving him of the right to an impartial jury.

Trial courts have wide discretion in deciding whether or not to grant a motion for a continuance. These decisions will not be overturned on appeal unless the appellant shows that the denial of this motion was arbitrary. A reviewing court will consider a number of non-exclusive factors:

[T]he timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; [and] the defendant’s personal responsibility for the timing of the request.

State v. Coney, 266 Conn. 787, 801 (2003). Even if the Appellate Court finds that the trial court acted arbitrarily, it must also determine that the denial was harmful, a burden placed on the appellant. If the denial implicates the violation of a constitutional right, prejudice is presumed. In addition, with respect to alternate jurors, they must have “the same qualifications and be selected in the same manner as regular jurors.” General Statutes § 54-82h(a).

In this case, the Appellate Court considered the factors listed above and came to the conclusion that the trial court’s denial of the motion for a continuance was “unreasonable and arbitrary under the unique circumstances of the case.” However, though the defendant cited a deprivation of his Sixth Amendment protections, he did not cite any case law or provide any analysis in support of his claim. As such, prejudice was not presumed, and the defendant had to show he was harmed by Juror T sitting on the jury. The defendant failed to demonstrate specific harm, and the Appellate Court declined to presume that Juror T was not “an impartial juror under these circumstances.” Therefore, the judgment was affirmed.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence) or license suspension, an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

DUI Suspect Did Not Have Right to be “Selectively Silent;” Rebuttal Inquiry Did Not Violate Constitutional Protections

Last year, the Appellate Court of Connecticut considered whether a prosecutor’s line of inquiry violated a defendant’s due process rights against self-incrimination under the state and federal constitutions.

This case arose from an incident that occurred at 1:22am on April 9, 2008. A state trooper was on routine patrol along I-95 in Fairfield, CT, when he received a report of an erratic driver in his vicinity. He promptly located the vehicle in question, which was driving only 35mph in a 55mph zone. In addition, the trooper saw the vehicle swerve multiple times and nearly strike a guardrail. Therefore, the trooper initiated a traffic stop. While interacting with the driver, who was later identified as the defendant, the trooper made the following observations: bloodshot and watery eyes, slurred speech, and the distinct odor of alcohol. The trooper spotted a plastic cup with a tan liquid in the center console, but the defendant would not answer any questions regarding it.

The trooper asked the defendant to exit the vehicle and administered three field sobriety tests. The defendant was then arrested for operating a motor vehicle while under the influence (OMVUI) and transported to state police barracks located in Bridgeport, CT. There, he agreed to submit to two breathalyzer tests, both taken within two hours of the defendant operating his car and with results over the legal limit. The defendant was advised of his Miranda rights and presented with questions from a motor vehicle supplemental form (A44 form): the defendant answered some, but refused to answer others regarding alcohol and food consumption.

Before trial, the defendant filed a motion in limine to exclude the admission of the A44 form, citing his constitutional right against self-incrimination, but the court denied the motion. At trial, the State conducted an “offer of proof” through the trooper regarding the A44 form, and the defendant objected, but the form was admitted into evidence. On cross-examination, defense counsel engaged the trooper in a line of questioning regarding the defendant’s cooperation in answering questions from the form. On redirect, the State asked whether the trooper inquired about the amount the defendant had to drink, and the defense objected on the ground of self-incrimination. The State argued that “the line of questioning had been opened by the defendant,” and the court agreed and overruled the objection. The defendant was subsequently found guilty by a jury and he appealed his conviction, arguing in part that his due process rights were violated by admission of the A44 form and related questioning during trial.

When one party engages a witness in a particular subject during examination at trial, he or she “cannot object if the opposing party later questions the witness on the same subject.” This is known as “opening the door” to rebuttal. Where a defendant has been advised of his Miranda rights, he does not also have the right to be “selectively silent.” Thus, the right against self-incrimination is inapplicable to a factual scenario where a defendant so advised chooses to answer some questions but “selectively declines to answer several others.”

In this case, the Appellate Court found that when the defense asked the trooper questions related to the defendant’s cooperation regarding the A44, the State had every right to follow up with questions on redirect evidencing the unresponsive answers. As the Court stated, “The defendant cannot reap the benefits of inquiry into one subject and expect the state’s questioning within the same scope to be held impermissible.” Therefore, there was no abuse of discretion when the court allowed the State’s inquiry on redirect regarding the defendant’s refusal to answer questions related to alcohol and food consumption. After addressing additional grounds for appeal, the Appellate Court affirmed judgment in its entirety.

When faced with a charge of operating a motor vehicle while intoxicated (a.k.a. driving under the influence), an individual is best served by consulting with an experienced criminal law practitioner. Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

Written by Lindsay E. Raber, Esq.

Defendant’s Juror Misconduct Claim Rejected; Lower Court Did Not Abuse Its Discretion with Extent of Inquiry

In a recently posted article, a criminal defendant convicted of various gun charges failed on his insufficiency of the evidence claim. He further argued on appeal that the court improperly concluded that juror misconduct did not take place.

Essentially, the defendant claimed that a juror, T, did not believe there was enough evidence that the defendant committed assault. However, T changed his vote to guilty after another juror threatened to hang the jury on an attempted murder charge. The court held an evidentiary hearing, asking questions “which mainly focused on T’s recollection and awareness of the instructions on legal principles that had been given to the jurors prior to their deliberations.” T responded in the affirmative when asked these questions.

Thereafter, the court issued a memorandum that rejected the defendant’s claim of jury misconduct. It explained, in essence, it is only the final and formal conclusion that is considered, not a juror’s prior, private intentions:

Connecticut courts have consistently found that the expressions and arguments of jurors in their deliberations and evidence as to their own motives, beliefs, mistakes and mental operations in arriving at a verdict are to be considered immaterial in claims of juror misconduct. To do otherwise would violate the sanctity of the juror process. …

It is the burden of the defendant to prove actual juror bias and misconduct that resulted in actual prejudice, where the trial court was not responsible. In this case, the defendant argued that the court’s inquiry was not sufficient because “the court did not ask the juror if he recalled the court’s instruction prohibiting consideration of punishment or the consequences of their verdict.”

The Appellate Court concluded that the court’s inquiry into whether juror misconduct occurred “was tailored properly to ascertaining this fact.” It noted that T confirmed that he recalled the relevant instructions given by the court before deliberations began. The court found no need to proceed any further, and to do so would constitute an abuse of discretion. “That the verdict may have been the result of compromise, or a mistake on part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Therefore, this part of the defendant’s appeal was denied.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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Liability Under Dram Shop Act Requires “Visible Intoxication”

Last year, the Appellate Court of Connecticut considered whether or not a trial court’s denial of a motion to set aside the verdict was an abuse of discretion, because a required element of the offense charged was not established by the plaintiff.

In this case, a citizen and his friend were at a restaurant-bar where they were playing billiards. The citizen consumed five beers, two alcoholic shots, and a blackberry brandy within a four-hour period, but did not exhibit any physical signs of intoxication. Nonetheless, while drunk, he purchased an alcoholic beverage from the restaurant’s bartender. Subsequently, the citizen and his friend left the restaurant-bar and were involved in an accident, resulting in the friend’s death.

The estate of the friend (plaintiff) brought a wrongful death action against the owners of the restaurant (defendant), claiming liability under the Dram Shop Act, Connecticut General Statutes (CGS) § 30-102. A jury found in the plaintiff’s favor and awarded $4 million in damages, though the defendant sought reduction to the statutory $250,000, which the court granted. The defendant also filed a motion to set aside the verdict and a directed verdict, arguing, in part, that “no evidence was presented from which the jury reasonably could have concluded that [the citizen] was intoxicated” under CGS § 30-102. The motion was denied, and the defendant appealed, arguing that the trial court abused its discretion in denying the motion.

CGS § 30-102 is the statutory mechanism through which a plaintiff may recover damages from one who sells alcohol to an intoxicated person, and such person subsequently causes an injury. For the plaintiff to prevail in such an action, he or she must prove that “there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” At issue on appeal in this case was whether or not the second element requires proof of “visible intoxication” or what amounts to per se intoxication.

The Appellate Court agreed that a showing of visible intoxication was required, and stated that for purposes of CGS § 30-102, “an individual must exhibit some type of physical symptomology in such a way that an observer could perceive that the individual was indeed under the influence of alcohol to some noticeable extent.” In addition, the plaintiff must present evidence that shows the subject in question was either visibly or perceivably intoxicated.

In this case, the Appellate Court noted that while the evidence presented at trial may establish intoxication as it is used in our DUI law (CGS § 14-227a), it was insufficient to prove intoxication under CGS § 30-102. As the Court elaborated, the plaintiff did not present any evidence of visible intoxication – indeed, there was no evidence at all showing that the citizen “was exhibiting any visible or perceivable indications that he was intoxicated.” Therefore, the court abused its discretion in denying the motion to set aside the verdict, because based on the evidence presented, a jury could not have found the required element of “intoxicated person.” Therefore, the judgment was reversed and case remanded.

Should you have any questions, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport office in Fairfield County at 203-221-3100 or at JMaya@Mayalaw.com.

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