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STATE OF CONNECTICUT v. TODD R. ROMANKO

(SC 19112)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.*

Argued March 20—officially released August 19, 2014

Jeanne M. Zulick, assigned counsel, for the appellant (defendant).

Harry Weller, senior assistant state’s attorney, with

whom, on the brief, were Gail P. Hardy, state’s attorney, and Robert Diaz, assistant state’s attorney, for the

appellee (state).
Opinion

ESPINOSA, J. In this certified appeal,1 we consider

whether the Appellate Court properly concluded that

the trial court did not abuse its discretion by precluding

certain demonstrative evidence proffered by the defendant, Todd R. Romanko. The defendant appeals from

the judgment of the Appellate Court affirming the trial

court’s judgment of conviction, rendered following a

jury trial, of operating a motor vehicle while under the

influence of intoxicating liquor or drugs or both, in

violation of General Statutes § 14-227a (a) (1). The

defendant claims that by precluding the proffered

demonstrative evidence, by which the defendant sought

to display to the jury how his alleged disability prevented him from performing two mobility based field

sobriety tests under any conditions, the trial court

deprived him of his constitutional right to present a

defense. The defendant additionally claims that the

state cannot satisfy its burden to prove that the error

was harmless beyond a reasonable doubt. Because we

conclude that, rather than preventing the defendant

from presenting his defense, the court acted within its

discretion in disallowing the defendant from utilizing

a demonstration thatthe court properly deemed unreliable to pursue his theory of defense, we affirm the judgment of the Appellate Court.2

The jury reasonably could have found the following

facts. At 10 p.m., on August 14, 2009, Cheryl Byrne was

in the living room of her home in Burlington, when she

heard noises outside. She walked into the kitchen to

look out the window to the backyard and saw the defendant, whom she did not know, on the deck that wraps

around the house. Initially, the defendant did not

respond when Byrne repeatedly asked him what he was

doing there, but eventually he told her he was looking

for ‘‘Gerry.’’ Byrne noticed that something was ‘‘definitely not right’’ with the defendant, that his eyes were

glossy and he appeared to see with what she termed

‘‘tunnel [vision].’’ She was uncertain whether he was

intoxicated or under the influence of drugs. She told

him that there was no one named Gerry there, and that

he had to leave. The defendant then walked around the

deck and entered the house through the front door.

When Byrne’s German shepherd dog immediately began

barking furiously, the defendant backed out of the home

and walked to where he had parked his car. Byrne

watched him drive away in an older, white Monte Carlo

with a red pinstripe. She made note of the license plate

number,then called 911 to reportthe incident, providing

the description of the vehicle and the license plate number to the police.

At approximately 10:30 p.m., Officer Stanley Murak

of the Farmington Police Department was on patrol in

his marked police cruiser when he spotted the defendant’s vehicle turning onto Coppermine Road in Farm-
ington. Murak had been traveling in the opposite

direction, but he turned around and drove back until

he came to an intersection, where the defendant’s vehicle was stopped at a stop sign. Although there were

three vehicles between the defendant’s vehicle and Murak’s cruiser, Murak could see that the left tires on the

defendant’s vehicle were on the double yellow line in

the middle of the road. The defendant’s vehicle proceeded through the intersection, then swerved quickly

to the left, crossing at least one foot over the yellow

lines, then swerved back to the right. At that point,

Murak turned on his lights and siren and passed the

three other vehicles to pull over the defendant. As he

pulled behind the defendant’s vehicle, the Monte Carlo

pulled to the right, its right front tire striking the curb,

going over it, then coming back down, whereupon the

vehicle came to a stop.

After notifying dispatch of the motor vehicle stop,

Murak exited his cruiser, approached the driver’s side

of the defendant’s vehicle and asked the defendant for

his license, registration and insurance card. As the

defendant looked for his registration and insurance

card, Murak observed that the defendant’s movements

were slow and deliberate. Observing that the defendant’s vehicle was emitting steam, Murak asked the

defendant if that was normal. When the defendant

responded, Murak smelled the odor of alcohol on his

breath and noticed that the defendant’s speech was

slurred. He could see into the passenger compartment

of the vehicle, where he observed an empty, twentyfour ounce beer can on the rear floor of the driver’s

side. He asked the defendant how much alcohol he had

consumed that night, and the defendant replied that

he had had one twelve ounce beer. Seeing that the

defendant’s pants were unzipped, Murak asked him why

his zipper was down. The defendant responded that he

must have forgotten to zip it back up, but then left his

pants unzipped.

Suspecting at this point that the defendant was under

the influence of alcohol, Murak asked the defendant to

step out of the vehicle. The defendant complied, and

Murak began to administer three standard field sobriety

tests, beginning with the horizontal gaze nystagmus

test,3 which the defendant failed. Murak next proceeded

to administer the walk and turn test, also known as the

heel to toe test.4 Before asking the defendant to perform

the test, Murak explained it verbally, then demonstrated

it. The defendant failed the test. Finally, Murak administered the one leg stand test.5 The defendant expressed

concern about the gravel on the side of the road, whereupon Murak allowed him to select a different location.

The defendant failed that test as well.

At that point, Murak placed the defendant under

arrest. He handcuffed the defendant, verbally advised

him of his Miranda6

rights and searched his person. He
then performed an inventory search of the defendant’s

vehicle, and discovered, in addition to the twenty-four

ounce empty beer can he already had seen, another

empty twenty-four ounce beer can, an empty eight

ounce beer can, and a full eight ounce can of beer. At

the precinct, the defendant was again advised of his

Miranda rights and he signed a notice of rights form.

Murak informed the defendant of Connecticut’s implied

consent law; General Statutes § 14-227b; and requested

that the defendant submit to a breath test on a machine

called an Intoxilyzer 5000, which the defendant refused

to do. Murak then summoned another officer, Sean

Bailey, to witness the defendant’s refusal to submit to

the breath test. Murak then questioned the defendant

using an A-44 form.7 The defendant again stated that

he had consumed one beer that evening, and that when

Murak stopped him, he had been coming from Murphy &

Scarletti’s, a barin Farmington. The defendant admitted

that he took prescription medication, and Murak recovered a bottle of a generic form of Ativan from the defendant’s person.

The defendant was charged with operating a motor

vehicle while under the influence of intoxicating liquor

or drugs or both in violation of § 14-227a (a) (1).8 During

the trial, the defendant testified that he was unable to

perform the walk and turn and the one leg stand field

sobriety tests because of a knee injury that he had

sustained during an accident on his dirt bike five years

earlier. In connection with that testimony, the defendant sought to perform those tests in front of the jury.

After a hearing outside the presence of the jury during

which the court heard the defendant’s offer of proof,

the court precluded the evidence on the basis that it

was not possible to replicate in court the conditions

on the night of the arrest, and because ‘‘[i]t would be

inappropriate to have the defendant demonstrate what

he thinks occurred on that night.’’ The court added,

however, that it would give the defendant ‘‘every leeway’’ to present his theory of the defense by other

means.

Following his conviction, the defendant was sentenced to three years incarceration, execution suspended after one year, and three years probation. The

defendant appealed from the judgment of conviction

to the Appellate Court, which affirmed the judgment on

the basis of its conclusion that the trial court correctly

determined that the proffered demonstration was unreliable. State v. Romanko, 139 Conn. App. 670, 675, 56

A.3d 995 (2012). This certified appeal followed.

The defendant claims that in precluding the proffered

demonstrative evidence, the trial court violated his constitutional right to present a defense. We disagree.

Because the court acted within its discretion in precluding the proposed demonstration on the basis of its finding that the conditions were not substantially similar
and because the court allowed the defendant to prove

his theory of defense by other means, we conclude that

the court did not abuse its discretion in precluding the

demonstrative evidence.

We review a trial court’s evidentiary ruling for abuse

of discretion. State v. Iban C., 275 Conn. 624, 634, 881

A.2d 1005 (2005). In a criminal case, ‘‘[w]hen defense

evidence is excluded, such exclusion may give rise to

a claim of denial of the right to present a defense. . . .

A defendant is, however, bound by the rules of evidence

in presenting a defense. . . . Although exclusionary

rules of evidence should not be applied mechanistically

to deprive a defendant of his rights, the constitution

does not require that a defendant be permitted to present every piece of evidence he wishes.’’ (Citations

omitted; internal quotation marks omitted.) State v.

Bova, 240 Conn. 210, 236, 690 A.2d 1370 (1997). The

trial court retains the power to rule on the admissibility

of evidence pursuant to traditional evidentiary standards. Id.

We have recognized that ‘‘the trial court has broad

discretion in determining whether to admit or exclude

demonstrative evidence.’’ Barry v. Quality Steel Products, Inc., 280 Conn. 1, 20, 905 A.2d 55 (2006); see also

Friedler v. Hekeler, 96 Conn. 29, 32, 112 A. 651 (1921)

(holding that trial court acted within its discretion in

allowing demonstration of extent to which plaintiff in

personal injury action could close her eye). The general

rule is that demonstrative evidence must be helpful to

the fact finder in order to be admissible. C. Tait & E.

Prescott, Connecticut Evidence (5th Ed. 2014) § 11.18,

pp. 744–45. The particular type of demonstrative evidence, and the purpose for which it is offered, determine the specific inquiry that a court engages in to

determine the admissibility of the proffered evidence.

Id., § 11.15.1, p. 736 (explaining that ‘‘[b]efore demonstrative evidence is admitted, the purpose of the evidence should be clearly stated,’’ and enumerating

different foundational requirements depending on

stated purpose of proffer). Where the proffered evidence, as in the present case, is a physical demonstration that is offered for the purpose of recreating the

events at issue at trial, ‘‘the demonstration must be

performed under substantially similar conditions so

that the rendition is reasonably fair and accurate.’’ Id.,

§ 11.18, pp. 744–45; see also State v. Holota, 2 Conn.

Cir. Ct. 45, 49, 194 A.2d 69 (1963) (holding that trial

court properly precluded defendant’s proposed demonstration of his performance of sobriety tests, because

‘‘[t]he conditions were not the same; the tests could

not be reproduced’’); State v. Martin, 182 Vt. 377, 388,

944 A.2d 867 (2007) (no abuse of discretion to preclude

videotaped reenactment of accident where conditions

in reenactment were ‘‘not substantially similar’’ to those

that existed during actual event).
The trial court in the present case properly grounded

its ruling on its determination that the conditions of

the defendant’s proposed demonstration were not substantially similar to those that existed on the night of

the defendant’s arrest. The colloquy between the court

and the parties reveals that both the court and the

parties understood that the purpose of the proposed

evidence was to reenact the walk and turn and the

one leg stand tests.9 During the offer of proof, defense

counsel explained that the purpose of the proposed

demonstration was to ‘‘show the jury how the [defendant] performed [those tests] physically.’’ The state

objected on the basis that a present demonstration of

the defendant’s performance of the tests would not be

able to show how he performed them on the night of

the arrest, more than one year earlier. In response to

the court’s inquiry as to how the defendant’s present

performance of the tests could fairly and accurately

represent what happened on the night of the arrest,

defense counsel responded that the jury could take into

account that they were viewing the tests in the present

time, and that the performance was similar, but not

identical to the way that the defendant performed them

on the night of the arrest, and that the purpose was to

show that ‘‘in a sober condition [the] defendant performs the test[s] the same way.’’ When the court questioned how the jury would be able to compare the two

performances, since they were not present on the night

of the arrest, defense counsel responded that the jury

could compare the defendant’s in-court demonstration

with the description that Murak had given during his

testimony of the defendant’s performance of the tests

on the night of the arrest. The state reiterated its objection on the basis that the in-court performance of the

tests could not accurately represent the defendant’s

performance ‘‘a year ago, at a different location, outdoor[s], [on the] side of the road.’’ The court asked

defense counsel if he claimed that the defendant was

somehow an expert on the tests. Defense counsel

responded no, and added that he believed, because the

defendant suffers from a disability, that the jury should

be able to view him performing the tests.

We evaluate the court’s ruling in light of the proposed

purpose of the offer and the court’s finding that the

conditions in court were not substantially similar to

those that existed on the night of the arrest. Our review

of the transcripts, as previously noted, reveals that

defense counsel repeatedly indicated that the purpose

of the offer was to reenact the defendant’s performance

of the tests. In light of that proposed purpose, the trial

court applied the proper standard when it considered

whether the conditions in court were substantially similar to those on the night of the arrest. Moreover, in

light of the court’s finding that the conditions were not

substantially similar—a finding that the defendant does

not challenge on appeal—it did not abuse its discretion
in precluding the demonstration.10

It is also significant that the court did not prevent

the defendant from presenting his theory of the

defense—that it was his disability ratherthan his intoxication that caused him to fail the walk and turn and

one leg stand tests—by other means. By expressly

allowing the defendant ‘‘every leeway’’ to present his

defense theory by means other than the proposed demonstration, the court made clear that it was excluding

only the demonstrative evidence of the defense, and

not the defense itself. The defendant was free to testify

regarding his injury and the effect that the injury had

on his ability to perform the tests, and he did. The

defendant testified that five years prior to the arrest,

he had injured his knee during a dirt bike accident. He

further stated that he had tried to explain to Murak that

his injury would prevent him from performing the tests

properly, but Murak would not listen to him. These two

statements by the defendant represent the sum total of

evidence he presented in support of his theory. He also

was free to present other evidence regarding the effect

that his injury had on his ability to perform the tests.

He could have presented the testimony of a treating

physician, produced documentary evidence, and questioned his father and his friend, both of whom testified

on his behalf, regarding the injury.11 He did not. Nor

did he mention in closing argument to the jury his claim

that it was his disability rather than his intoxication

that prevented him from passing the two mobility based

field sobriety tests. The mere fact that the trial court

prevented the defendant, on the basis of the court’s

sound application of the rules of evidence, from relying

on an unreliable demonstration to prove his claim does

not support the defendant’s claim that the court’s ruling

violated his constitutional right to present a defense.

The defendant had many other opportunities to present

reliable, admissible evidence to prove his claim, and he

chose not to. The court’s ruling did not infringe on his

constitutional right to present a defense.

The judgment of the Appellate Court is affirmed.

In this opinion ROGERS, C. J., and ZARELLA, EVELEIGH, McDONALD and ROBINSON, Js., concurred.

* This case originally was scheduled to be argued before a panel of this

court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson. Although Justice Palmer was not

present when the case was argued before the court, he has read the record

and briefs, and listened to a recording of the oral argument priorto participating in this decision.

1 The defendant appealed from the judgment of conviction to the Appellate

Court, which affirmed the judgment. State v. Romanko, 139 Conn. App. 670,

675, 56 A.3d 995 (2012). We subsequently granted the defendant’s petition

for certification to appeal, limited to the following question: ‘‘Did the Appellate Court properly determine that the trial court did not violate the defendant’s constitutional right to present a defense when it precluded the

defendant from introducing certain demonstrative evidence?’’ State v.

Romanko, 308 Conn. 908, 61 A.3d 530 (2013).

2

In light of our conclusion that the defendant’s constitutional right to

present a defense was not violated, it is unnecessary for us to address

the defendant’s claim that the alleged error was not harmless beyond a
reasonable doubt.

3

‘‘The horizontal gaze nystagmus test measures the extent to which a

person’s eyes jerk as they follow an object moving from one side of the

person’s field of vision to the other. The testis premised on the understanding

that, whereas everyone’s eyes exhibit some jerking while turning to the side,

when the subject is intoxicated the onset of the jerking occurs after fewer

degrees of turning, and the jerking at more extreme angles becomes more

distinct.’’ (Internal quotation marks omitted.) State v. Morelli, 293 Conn.

147, 156 n.6, 976 A.2d 678 (2009).

4

‘‘The walk and turn test requires the subject to walk heel to toe along

a straight line for nine paces, pivot, and then walk back heel to toe along

the line for another nine paces. The subject is required to count each pace

aloud from one to nine.’’ (Internal quotation marks omitted.) State v. Morelli,

293 Conn. 147, 156 n.7, 976 A.2d 678 (2009).

5

‘‘The one leg stand test requires the subject to stand on one leg with

the other leg extended in the air for [thirty] seconds, while counting aloud

from [one] to [thirty].’’ (Internal quotation marks omitted.) State v. Morelli,

293 Conn. 147, 156 n.8, 976 A.2d 678 (2009).

6 Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966).

7

‘‘The A-44 form is used by the police to report an arrest related to

operating a motor vehicle [while] under the influence and the results of any

sobriety tests administered or the refusal to submit to such tests.’’ (Internal

quotation marks omitted.) State v. Brown, 309 Conn. 469, 474 n.7, 72 A.3d

48 (2013).

8

In the second part of the information, the defendant was charged with

having two prior convictions for driving while under the influence, for which

the state sought an enhanced penalty. See General Statutes § 14-227a. The

defendant pleaded guilty to this charge.

9 The defendant now claims that the trial court misunderstood the purpose

of his offer. He claims that he did not seek to reenact the tests, but to

demonstrate to the jury that he could not have performed the mobility based

field sobriety tests under any circumstances, due to his disability. Ourreview

of the record, however, persuades us that the trial court correctly understood

the defendant’s explained purpose of the offer. As we explain herein, the

statements that defense counsel made to the court during the offer of proof

are consistent with the trial court’s understanding that the defendant sought

to reenact the performance of the tests.

Moreover, as the concurring opinion observes, the final statement the

court made on this issue was that it was ‘‘not going to allow that kind of

demonstrative evidence, basically, because we cannot recreate the scene.

It would be inappropriate to have the defendant demonstrate what he thinks

occurred on that night.’’ The defendant did not make any statement suggesting that he disagreed with the court’s interpretation of his proffer, nor

did he later file a motion for reconsideration or articulation that would have

suggested he disagreed with the court’s understanding of the basis for

his proffer.

10 The defendant also suggests that the court’s ruling violated his right to

testify on his own behalf. He claims that the demonstration would have

permitted him to ‘‘present his own version of [the] events . . . .’’ The right

to testify, the defendant explains, is part of his right to present his defense.

He adds that precluding the demonstration because the court deemed it to

be unreliable is akin to precluding a defendant from testifying on the basis

of a determination that the defendant may not be truthful.

Although we agree with the defendant that the constitutional right to

present a defense includes the right to testify on one’s own behalf, we

reiterate that the right to present a defense does not free the defendant

from the bounds of the rules of evidence. State v. Bova, supra, 240 Conn.

236. As we explain in this opinion, the court adhered to the rules of evidence

in precluding the demonstration. Its determination that the proffered demonstration would be unreliable, moreover, was not tied at all to a concern that

the defendant may feign injury, but was premised solely on the lack of any

substantial similarity between the courtroom conditions and the conditions

at the scene on the night of the defendant’s arrest. The defendant’s argument,

therefore, that the court’s ruling was comparable to barring a defendant’s

testimony on the basis of suspected untruthfulness, is unpersuasive.

11 The defendant claims that because the demonstrative evidence would

have been superior to any verbal testimony or documentary evidence he

could have offered to prove that he failed the mobility based field sobriety

tests due to his disability, the fact that the court allowed him to prove his
defense by other means did not render the court’s ruling constitutionally

valid. Even taking the defendant’s claim that the demonstration was somehow superior to other methods of proof, the defendant’s argument fails,

because it ignores the fact that the evidence was inadmissible because the

court found that the conditions were not substantially similar. Therefore,

the demonstration would not have been reliable.