State of Connecticut v. Phelps C. Jones, Supreme Court of Connecticut (Dec. 1, 1938)

Factual and Procedural Background

The defendant was charged by information with two counts: (1) intoxication on December 13, 1936, in Winchester, and (2) operating a motor vehicle while under the influence of intoxicating liquor. In a separate part of the information, he was charged with operating as a second offense. The matter was tried to the Court of Common Pleas for Litchfield County, before Seymour, J. The trial court found the defendant guilty on the intoxication count and on the charge of operating a motor vehicle while intoxicated, and, after a hearing, found him guilty of operating as a second offense. The defendant appealed from the judgment imposed by the trial court.

The trial court's factual findings (as summarized by this opinion) describe events of December 13, 1936: the defendant drank beer at the Hotel Clifton in Winsted, drove George Barrett (who was himself intoxicated) in Barrett's automobile, and, between about 7:00 and 7:15 p.m., collided with a car driven by Frederick Sigle. Multiple witnesses observed the defendant shortly after the collision and described signs of intoxication (smell of liquor, unsteadiness, and intoxicated appearance). Police officers arrived shortly after and found the defendant intoxicated. A physician, Dr. Donald C. Herman, examined the defendant between 8:00 and 8:30 p.m., administered tests, and concluded the defendant was under the influence of alcohol and that the alcohol would affect his operation of an automobile.

Legal Issues Presented

Whether testimony from lay witnesses and certain expert witnesses (a physician and an experienced police officer) as to the defendant's condition and fitness to operate an automobile was admissible.
Whether a certified record of a prior conviction described in the alternative as "driving under the influence of liquor or drugs" was admissible to prove the defendant a second offender under the statute prohibiting operation of a motor vehicle while under the influence of intoxicating liquor or of any drug.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The defendant assigned error to the trial court's rulings admitting certain testimony and to its refusal to find certain facts; however, many of those assignments relating to factual findings were not pursued in his brief and the evidence was not made part of the record on appeal, so the appellate court did not consider them.
The defendant specifically contended that the certified record of the prior conviction — stated in the alternative as "driving under the influence of liquor or drugs" — did not show whether the prior conviction was for driving under the influence of liquor or for driving under the influence of drugs and therefore was inadmissible to prove a prior conviction for purposes of increasing punishment as a second offender.
The defendant relied upon prior decisions (Grasso v. Frattolillo and Zenuk v. Johnson) holding that a plea or conviction that was in the alternative did not sufficiently identify the particular offense admitted where introduced in a civil case arising out of the same facts.

Appellee's (State's) Position

The State relied on the trial evidence and on legal authorities permitting lay and expert testimony as to the accused's condition and fitness to operate a vehicle.
The State offered a certified copy of a prior conviction recorded as "driving under the influence of liquor or drugs" to prove the defendant's status as a second offender; the State's position, as reflected in the opinion, was that such a conviction establishes the status of a first offender under the statute regardless of whether the former conviction described the substance as liquor or drugs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Boucher, 119 Conn. 436, 177 A. 383	Principle that appellate court will accept trial court's factual findings when evidence is not made part of the record.	Used to justify accepting the trial court's factual findings where the evidence was not included in the appellate record.
Heslin v. Malone, 116 Conn. 471, 165 A. 594	Same procedural principle regarding acceptance of trial court findings absent evidence in record.	Applied alongside Boucher to decline consideration of assignments of error directed to factual findings not supported by the appellate record.
State v. Katz, 122 Conn. 439, 189 A. 606	That the condition of intoxication and its common accompaniments are matters of general knowledge.	Quoted to support admissibility of testimony regarding intoxication as not being mere opinion but observational fact.
Atwood v. Atwood, 84 Conn. 169, 79 A. 59	Permits lay witnesses to testify to impressions or conclusions formed from numerous or ephemeral constituent facts when those elements cannot be fully detailed; such testimony is admissible where witness had means/opportunity of acquiring knowledge.	Relied upon to permit lay witnesses to express whether defendant appeared intoxicated, given their observations and the ephemeral nature of intoxication signs.
Campbell v. New Haven, 78 Conn. 394, 62 A. 665	Support for allowing lay opinion when based on direct sensory observation relevant to the matter in suit.	Referenced as authority for admitting lay testimony on intoxication.
Edwards v. Worcester, 172 Mass. 104, 51 N.E. 447	Statement that intoxication is not a matter of opinion any more than distance, size, color, etc.	Quoted to reinforce that questions about intoxication are within proper scope of lay testimony.
Felska v. New York Central H.R. Co., 152 N.Y. 339, 46 N.E. 613	Authority cited for treating intoxication as matter for observational testimony rather than inadmissible opinion.	Used as supporting authority for admitting observational testimony on intoxication.
State v. Andrews, 108 Conn. 209, 142 A. 840	Describes the test to be applied in determining guilt for driving while under the influence.	The questions to experts were said to closely approximate that test and therefore were admissible.
Kelly v. Waterbury, 96 Conn. 494, 114 A. 530	Principle that a witness should not be required to state a legal conclusion or apply a legal principle in testifying.	Used to support that the witnesses did not state impermissible legal conclusions by expressing opinion as to intoxication and fitness to drive.
Lentine v. McAvoy, 105 Conn. 528, 136 A. 76	Similar principle concerning witnesses and legal conclusions.	Applied to justify admission of the expert and lay testimony without treating it as a legal conclusion.
St. George Pulp Paper Co. v. Southern N.E. Telephone Co., 91 Conn. 563, 100 A. 358	Witnesses should not be required to weigh facts outside the scope of their opinion so as to draw a conclusion which is for the trier of fact.	Relied upon to explain that witnesses' opinions did not improperly draw legal conclusions for the court to decide.
Hayes v. Candee, 75 Conn. 131, 52 A. 826	Category of permissible questions allowing witnesses to give impressions or conclusions formed from observation.	Cited to classify the permitted questions about intoxication as proper observational opinion testimony.
Grasso v. Frattolillo, 111 Conn. 209, 149 A. 838	Held that a plea or conviction in the alternative was not sufficiently distinct to show what negligent conduct was admitted when used in a civil case arising from the same circumstances.	Distinguished: court explained those cases involved introduction of a criminal record in a civil damage action from the same facts; the present case was different because a prior conviction creates a status for penal enhancement.
Zenuk v. Johnson, 114 Conn. 383, 158 A. 910	Same principle as Grasso — limitation on using an alternatively phrased conviction in a civil proceeding involving the same facts.	Distinguished on the same grounds as Grasso; not controlling for admissibility to prove prior offender status in a later criminal prosecution under the statute.
State v. Miglin, 101 Conn. 8, 125 A. 250	That a conviction for operation while under the influence creates a status (i.e., the status of a first offender under the statute).	Applied to hold that a prior conviction for driving under the influence (of liquor or drugs) establishes the status of a prior offender and is therefore admissible to prove a second offender.

Court's Reasoning and Analysis

The court proceeded in a sequence of legal determinations grounded strictly on the record and cited authority:

On factual findings: Because the evidence was not included in the appellate record, the court applied the settled rule that it must accept the trial court's factual findings. The accused's assignments of error that attacked those findings could not be considered. (Citing State v. Boucher and Heslin v. Malone.)
On admissibility of testimony concerning intoxication:
- The court recognized that intoxication and its usual manifestations are matters of common knowledge (citing State v. Katz).
- The court explained that lay witnesses who had direct sensory observation of the defendant could testify to impressions or conclusions formed from numerous or ephemeral constituent facts when those facts cannot be fully detailed; Atwood v. Atwood and related authorities support this rule. The court characterized the contested questions to lay witnesses (Sigle and Dorsey) as asking whether, from their observation, the accused was intoxicated at different times and to what extent; such questions were within the permissible scope of lay testimony.
- The court treated Dr. Herman (physician) and Officer Heath (who had driven for eighteen years) as expert witnesses. The questions posed to them — asking whether the accused's mental and physical processes were so affected as to materially affect automobile operation, or whether he was fit to operate — were close to the legal test for the offense but did not require the witnesses to state a legal conclusion. The court relied on State v. Andrews for the applicable test and on Kelly v. Waterbury, Lentine v. McAvoy, and St. George Pulp Paper Co. to explain why such testimony was not improper legal conclusion or impermissible weighing of facts for the trier of fact.
- In short, the court concluded the challenged rulings admitting the lay and expert testimony were proper because the testimony either constituted permissible observational opinion based on direct perception or expert opinion within the witnesses' competence and did not usurp the court's or jury's role in applying legal standards.
On admissibility of the prior conviction to prove a second offense:
- The court noted that the statute (General Statutes, §1585) prohibits operation of a motor vehicle while under the influence of intoxicating liquor or of any drug and provides a more severe punishment for a second conviction.
- The court reasoned that the gravamen of the statutory offense is operation while under the influence of either substance, and that a conviction for such operation creates a status (a prior offender status). Citing State v. Miglin, the court held that whether the prior conviction specified liquor or drugs, the conviction established the status of a first offender under §1585.
- The court distinguished prior cases relied upon by the defendant (Grasso v. Frattolillo and Zenuk v. Johnson). Those cases involved attempts to introduce alternatively phrased pleas/convictions in a civil trial arising out of the same collision to prove negligence; there the concern was that an alternative plea did not identify which negligent conduct was admitted. The present context — using a prior criminal conviction to establish status for penal enhancement — was different: the prior conviction, even if in the alternative, sufficiently established a previous conviction for an offense within the statutory definition and thus was admissible to prove a second offender.
- The court also observed that before the former conviction the defendant could have compelled the State to specify whether the charge was for liquor or drugs, but after conviction the defendant could not object to the introduction of the record to prove a subsequent status as a second offender.

Holding and Implications

Holding: The trial court's rulings were correct; the admissibility of the witnesses' testimony and of the certified record of the prior conviction were proper, and the judgment of guilty, including the finding of operating as a second offense, is affirmed — in the words of the opinion, "No error."

Implications:

Direct effect: The defendant's convictions (for intoxication, for operating a motor vehicle while intoxicated, and for operating as a second offense) stand; the appellate court found no error in the trial court's rulings on evidence or in admitting the prior conviction to prove second-offender status.
Evidentiary principle reaffirmed: Lay witnesses may testify to impressions of intoxication formed from direct observation, and suitably qualified experts (a physician and an experienced police officer) may testify as to the defendant's condition and fitness to operate a vehicle without stating an impermissible legal conclusion, so long as the testimony does not usurp the trier of fact's role.
On prior convictions: A prior conviction for operating while under the influence, even if phrased in the alternative as "under the influence of liquor or drugs," establishes the status of a prior offender under the statute prohibiting operation while under the influence and is admissible to prove a second conviction for the purpose of enhanced punishment. The court expressly distinguished civil-case precedents where alternatively phrased pleas were problematic when used to prove negligence arising from the same incident.
The opinion applies existing authorities and statutory interpretation to the facts of this case; it does not announce a novel rule beyond those applications.

Attorneys of record: Thomas J. Wall for the appellant (defendant); J. Howard Roberts, Prosecuting Attorney, for the appellee (plaintiff).

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STATE OF CONNECTICUT v. PHELPS C. JONES

The condition of intoxication and its common accompaniments are a matter of general knowledge. The question of whether it exists is not a matter of opinion. Questions propounded to lay witnesses who had observed the accused, in effect asking them whether from their observation he was intoxicated at different times and the extent to which he was intoxicated, were properly admitted. Questions asked of a doctor who had examined the accused, as to whether he was so affected in his mental and physical processes as to be materially affected in the operation of a motor vehicle, and of a police officer who had driven an automobile for eighteen years, as to whether the accused, when seen by him, by reason of his condition was fit to operate an automobile, were properly allowed, both being expert witnesses. The statute prohibits the operation of a motor vehicle while under influence of intoxicating liquor or of any drug, and provides a more severe punishment for a second conviction. After the accused had been found guilty of driving while under the influence of intoxicating liquor the State offered in evidence a certified copy of a prior conviction of the accused of "driving under the influence of liquor or drugs." Held that this conviction, although in the alternative, was admissible for the purpose of proving the accused a second offender.

AVERY, J.

The accused was brought to trial on an information charging him, in a first count, with intoxication on December 13th, 1936, in the town of Winchester; and, in a second count, with operating a motor vehicle while under the influence of intoxicating liquor; and, in a separate part of the information, he was charged with so operating as a second offense. After the trial, the accused was found guilty of intoxication and of operating a motor vehicle while so intoxicated; and thereafter, after hearing, was found guilty of so operating as a second offense. From the judgment imposed by the court the accused has appealed.

In his appeal, the accused has assigned error in the action of the court in finding certain facts, as it is claimed, without evidence and in refusing to find other facts claimed to have been established by the accused; but as the evidence is not made part of the record we cannot consider any of the assignments of error addressed to the finding and must accept the same as made by the trial court. The accused has assigned as error that the subordinate facts found by the trial court do not support its conclusion of operating under the influence of liquor; this contention is not pursued in his brief, however, and we do not consider it. State v. Boucher, 119 Conn. 436, 437, 177 A. 383; Heslin v. Malone, 116 Conn. 471, 476, 165 A. 594.

The only assignments of error which are pursued in the brief relate to certain rulings upon evidence and the admissibility of the record of a former conviction. From the finding it appears that the accused on December 13th, 1936, at about 5 o'clock in the afternoon went to the restaurant in the Hotel Clifton at Winsted, remaining there until about ten minutes before seven. During that time he drank beer. At about quarter before seven he was requested by the proprietor of the hotel to drive George Barrett to his home in the latter's automobile, a distance of about three miles. At that time Barrett was intoxicated and unfit to drive. While driving toward Barrett's home between 7 and 7.15 in the evening a collision occurred between the car operated by the accused, proceeding northerly on North Main Street, with a car operated by Frederick Sigle in a southerly direction. John T. Dorsey of New Haven was riding with Sigle seated upon the front seat of the automobile. Just prior to the collision Sigle observed the Barrett car coming toward him and weaving from side to side. Immediately after the collision, Dorsey jumped out and went over to the Barrett car and found the defendant standing at the left front door which was opened. At that time Dorsey found that Jones was intoxicated. At the time of the collision a car was parked on the westerly side of the street in front of the house of Emil Carpenter, who immediately came out of his house, saw the accused standing near the car and testified that he considered the accused had been drinking. About seven or eight minutes later Sigle arrived at the Barrett car and found the accused intoxicated and that he smelled of liquor and was unsteady as he walked. About 7.35, police officers Heath and Lachat arrived at the scene and at that time the accused was intoxicated. Between 8 and 8.30, Dr. Donald C. Herman, a practicing physician, examined the accused, gave him certain tests and from these tests and from his examination found that the accused was under the influence of alcohol and that it would affect the way in which he would drive an automobile.

In the course of the trial, witnesses Sigle and Dorsey were asked whether they observed any change in the condition of the accused in regard to intoxicating liquor from the time they first saw him until he was examined by the doctor. Over the defendant's objection the witnesses were permitted to answer and testified in substance that the condition of the accused had changed for the better by that time. Dr. Herman was asked whether at the time he examined Jones the latter was so affected in his mental and physical processes as to be materially affected in the operation of a motor vehicle; and over objection answered that he was. Officer Heath, who testified that he had driven an automobile for eighteen years, was asked from his observation, whether the accused, when first seen by the officer by reason of his condition was fit to operate an automobile, and over objection answered that he was not. Error is assigned by the accused in these rulings. The condition of intoxication and its common accompaniments are a matter of general knowledge. State v. Katz, 122 Conn. 439, 442, 189 A. 606. "When . . . a subject is relevant to the matter in suit, and the lay witness has had the means and opportunity of acquiring knowledge of the subject through the use of his senses, and the impression or opinion is formed from constituent facts and conditions which are so numerous or so complicated as to be incapable of separation, or so evanescent in character they cannot be fully recollected or detailed, or described, or reproduced so as to give the trier the impression they gave the witness, or so as to enable the trier to draw a fair inference from such facts and conditions, — he may be permitted to testify to the impression or conclusion obtained by him from them, leaving it to the cross-examination to develop the foundation for the impression or conclusion." Atwood v. Atwood, 84 Conn. 169, 172, 79 A. 59; Campbell v. New Haven, 78 Conn. 394, 395, 62 A. 665; 4 Wigmore, Evidence (2d Ed.) 1974. "[The question of intoxication] is not a matter of opinion, any more than questions of distance, size, color, weight, identity, age, and many other similar matters are." Edwards v. Worcester, 172 Mass. 104, 105, 51 N.E. 447; Felska v. New York Central H.R. Co., 152 N.Y. 339, 344, 46 N.E. 613; 22 C. J. 599; 68 A.L.R. 1364; 11 R.C.L. 608.

The questions propounded to the lay witnesses, Sigle and Dorsey, went no further than to ask whether from their observation the accused was intoxicated at different times and the extent to which he was intoxicated. Dr. Herman and Officer Heath) the former by reason of his medical training and the latter because of his long experience, were expert witnesses. The questions propounded to these witnesses very closely approximated the test to be applied to determine whether or not one is guilty of the crime of driving a motor vehicle while under the influence of intoxicating liquor. State v. Andrews, 108 Conn. 209, 216, 142 A. 840. They were not for that reason inadmissible. The answers to the questions did not require the witnesses to apply to the facts a legal principle or standard and so to state a legal conclusion. Kelly v. Waterbury, 96 Conn. 494, 500, 114 A. 530; Lentine v. McAvoy, 105 Conn. 528, 533, 136 A. 76. Nor were the witnesses, in order to answer the questions, required to weigh facts which were not related to their opinion as experts and so to draw a conclusion which the trier must ultimately determine upon the basic of the facts which he finds proven. St. George Pulp Paper Co. v. Southern N.E. Telephone Co., 91 Conn. 563, 570, 100 A. 358. The questions fall into the category of those allowed in Hayes v. Candee, 75 Conn. 131, 139, 52 A. 826, and Atwood v. Atwood, 84 Conn. 169, 79 A. 59; while they might have been regarded as calling for the statement of a legal conclusion, they were allowed as expressing no more than the opinion of the witness formed from his observation as to the condition of the defendant due to the intoxicating liquor he had drunk.

After the accused had been tried and found guilty on the first two counts of the information, for the purpose of proving a second conviction the State offered in evidence a certified copy of a prior conviction of the accused on March 7th, 1935. The record showed that the accused was convicted in New Hartford of, "driving under the influence of liquor or drugs." The accused contends that as the charge in the former case was in the alternative, the records did not show whether the prior conviction was for driving under the influence of liquor or of drugs and was inadmissible to prove that the accused was a second offender. The accused relies upon the cases of Grasso v. Frattolillo, 111 Conn. 209, 211, 149 A. 838, and Zenuk v. Johnson, 114 Conn. 383, 388, 158 A. 910. The situation in each of those cases, however, was entirely different from that involved in the instant case. In those cases it was sought to introduce at the trial of a civil case for damages arising out of an automobile collision the record of a conviction in the criminal case arising out of the same set of circumstances, and we held that the records in those two cases having charged in the alternative different offenses, the pleas of guilty were not sufficiently distinct for the jury to be able to determine what particular negligent conduct the accused had admitted by his plea of guilty. General Statutes, 1585, prohibits the operation of a motor vehicle by a person while under the influence of intoxicating liquor or of any drug and provides a more severe punishment for a second conviction. The gravamen of the offense prohibited by this statute is operation of a vehicle while under the influence of either of these substances. A conviction of such operation creates a status. Whether the conviction was for operating while under the influence of liquor or of a drug, the status of a first offender against the statutes is established by the conviction. State v. Miglin, 101 Conn. 8, 10, 125 A. 250. Undoubtedly the accused at the former trial by appropriate motion could have compelled the State to specify whether it was claimed that he was under the influence of liquor or of drugs. Inasmuch, however, as a conviction of being under the influence of either of these substances would constitute a prior conviction and establish the status of the accused under 1585, he could not, after conviction, object to the introduction of the record for the purpose of proving him a second offender against the statute.

STATE v. JONES