Opinion
FOTI, J.
The defendant, Michael P. Miller, appeals from the judgments of conviction, rendered following a jury trial, of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of General Statutes § 14-227a (a) (1) and two counts of operating a motor vehicle with a suspended license in violation of General Statutes § 14-215 (a).
On appeal, the defendant claims that the trial court improperly admitted into evidence two redacted versions of suspension notices issued by the department of motor vehicles (department) that informed him that his operator’s license was suspended and also failed to redact portions of those suspension notices that indicated the length of the respective suspensions. The defendant also contends that prosecutorial impropriety deprived him of a fair trial. We affirm the judgments of the trial court.
The jury reasonably could have found the following facts. On July 3, 2006, Officer Sean Anderson of the
North Branford police department was on duty and patrolling the town in his police cruiser. At approximately 8:30 p.m., as he drove along Maltby Lane and approached Line Street, Anderson observed the defendant driving his Dodge Ram pickup truck on the wrong side of Line Street. Anderson turned onto Line Street and proceeded to follow the defendant’s vehicle. He observed the vehicle swerve back and forth and activated the cruiser’s overhead emergency lights in order to stop the vehicle. Prior to exiting his cruiser, Anderson radioed his dispatcher, who, based on the registration number of the vehicle, informed him that the vehicle was registered to the defendant. Anderson approached the vehicle and requested that the defendant give him his operator’s license and the vehicle registration. He observed that the defendant had slurred speech and watery eyes and was “fumbling” through papers, unable to locate the vehicle’s registration or his insurance card. Anderson also smelled the strong odor of alcohol emanating from the defendant’s breath. He then asked the defendant to exit his vehicle. As the defendant exited the vehicle, Anderson observed that he was unsteady on his feet. The defendant used the truck door, as he exited the vehicle, and the bed of the truck, as he made his way to the back of the vehicle, to maintain his balance and to keep from falling over. Anderson determined that he would conduct field sobriety tests on the defendant in order to establish whether the defendant was impaired by alcohol.
While Anderson was explaining the horizontal gaze nystagmus test, the defendant, although he was located on a level, paved road, could not stand without Anderson’s assistance. Anderson then determined that because of the level of the defendant’s intoxication, it was unsafe to conduct any field sobriety test, placed him under arrest and
charged him with operating a motor vehicle while under the influence of intoxicating liquor or drugs.
After transporting the defendant to the North Bran-ford police station, Anderson and his colleague, Officer James Lovelace, processed and booked him. Anderson advised the defendant of his
Miranda
rights,
as well as the implied consent advisory concerning a Breathalyzer test, which involves a chemical analysis of a person’s breath,
and afforded him an opportunity to contact an attorney. The defendant declined to contact an attorney and refused to take the Breathalyzer test. Anderson informed the defendant that his refusal to take the Breathalyzer test would result in the revocation of his operator’s license for twenty-four hours and its suspension for at least six months. During the booking procedure, Anderson received information from the department indicating that the defendant’s driver’s license was suspended at the time of the traffic stop that night. Anderson charged the defendant with one count of operating a motor vehicle with a suspended license; see footnote 1 of this opinion; gave him a date for a court appearance and released him from custody.
The next morning, on July 4, 2006 at approximately 9:25 a.m., Lovelace was on duty and patrolling the town in his police cruiser. He saw the defendant in the passenger seat of a vehicle in the vicinity of and heading toward the tow truck company that had towed the defendant’s pickup truck the night before. Lovelace radioed the police dispatcher and requested the license plate number of the defendant’s pickup truck that he had been
driving the night before at the time of the traffic stop. Lovelace then observed the vehicle in which the defendant had been a passenger going in the opposite direction and without the defendant inside. He soon thereafter saw the defendant’s pickup truck exit the tow truck company parking lot. Lovelace then initiated a traffic stop and subsequently identified the driver as the defendant, whom he recognized from the previous night at the police station. He issued the defendant a summons for operating a motor vehicle with a suspended license; see footnote 1 of this opinion; and released him.
Following a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor or drugs in violation of § 14-227a and two counts of operating a motor vehicle with a suspended license in violation of § 14-215 (a). Thereafter, in a trial to the court on a part B information, the trial judge found the defendant guilty of one count of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both as a third time offender, in violation of § 14-227a and two counts of operating a motor vehicle with a suspended license, where the suspension was on account of a violation of § 14-227a, in violation of § 14-215 (c). The defendant was sentenced to a term of five years incarceration, execution suspended after two and one-half years, fourteen months of which was mandatory, and five years probation. This appeal followed.
I
We first address the defendant’s evidentiary claim. On appeal, the defendant claims that the court improperly admitted into evidence two redacted versions of suspension notices issued by the department that informed him that his operator’s license was suspended and failed
to redact portions of those suspension notices that indicated the length of their respective suspensions. We disagree.
Preliminarily, we note that “[o]ur standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done. . . . The exercise of such discretion is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law.” (Internal quotation marks omitted.)
Breen
v.
Synthes-Stratec, Inc.,
108 Conn. App. 105, 122, 947 A.2d 383 (2008).
The following additional facts provide the necessary backdrop for our resolution of these claims. On May 24, 2007, prior to the taking of evidence, the state indicated that it would seek to admit into evidence, through the testimony of Joanna Bisaupski, a department employee, redacted versions of two suspension notices issued by the department to the defendant.
After defense counsel stated that she wanted an “opportunity to review those documents with [the defendant] as they pertain to his license suspension and the notice received,” the state agreed to call Bisaupski last in its case-in-chief. Later in the trial, prior to Bisaupski’s taking the witness stand, the defendant objected to the admission into evidence of both suspension notices. Defense counsel stated that the basis for the objection was “the fact that [the suspension notices are] redacted,
and the method [by which they are redacted] suggests that the reason for the suspension is alcohol or drug related.” Counsel argued that “any 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].” During the discussion with the court that ensued, defense counsel further claimed that “the duration of the suspensions [which is not redacted] suggest an alcohol related suspension” and contended that evidence concerning the suspension notices, the information contained therein and the fact that they were sent to the defendant should “be presented in just oral form [because] there is no need for the documents to be admitted.”
The court, after reviewing the documents, overruled the objection, stating that because the reasons for the suspensions were redacted, the defendant’s argument that the suspension notices were more prejudicial than probative was mere speculation and was not founded in the evidence before the court or in the law. The court indicated that it would, if requested, “give a limiting instruction that [jury members] are not to speculate as to reasons for suspensions [and that] all that is being alleged here [by the state with the suspension notices] is that the defendant was under suspension.”
The defendant claims on appeal that the suspension notices were improperly admitted into evidence because their probative value was outweighed by their prejudicial impact on the defendant. Specifically, the defendant argues that the prejudicial impact of the notices outweighed their probative value because the redactions of the reasons for the suspensions
and the
respective lengths of the suspensions, which were not redacted, in combination, “were likely to have caused the jurors to believe that the defendant had [been convicted of] prior alcohol related offenses.” The defendant also seems to argue that the fact that the durations of the suspensions were not redacted on the notices, in and of itself, heightened the prejudicial impact of this evidence. This is so, he contends, because the increase from one year to three years in duration of suspension suggests “serious bases for the suspensions which was highly likely to be interpreted by the jury as alcohol related.” “A determination regarding undue prejudice is a highly fact and context-specific inquiry. . . . [T]he determination of whether the prejudicial impact of evidence outweighs its probative value is left to the sound discretion of the trial court . . . and is subject to reversal only [when] an abuse of discretion is manifest or injustice appears to have been done.” (Citation omitted; internal quotation marks omitted.)
State
v.
Jordan,
117 Conn. App. 160, 171, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009).
On the basis of our review of the record, we cannot conclude that the court abused its discretion in admitting the suspension notices into evidence. That the notices were relevant is manifestly clear. In order to convict the defendant of the charges of operating a motor vehicle with a suspended license, the state had to prove beyond a reasonable doubt that his license was suspended on July 3 and July 4, 2006, the dates of the violations. See General Statutes § 14-215 (a); see also
State
v.
Swain,
245 Conn. 442, 462-63, 718 A.2d 1 (1998). The defendant has offered no compelling bases for this court to conclude that the notices were unduly prejudicial because of the redacted “reasons” for his license suspensions or because of the visibility of the duration of the suspensions. The court’s determination
that the defendant’s contentions were rooted in speculation and not based on the evidence before it or in the law is supported in the record. Moreover, the court, in its charge to the jury, gave a limiting instruction.
“Our Supreme Court has consistently held that an instruction limiting the jury’s consideration to the specific purpose for which [evidence] was admitted ... is the most important method for reducing the prejudicial impact the evidence may have. See, e.g.,
State
v.
Jones,
205 Conn. 638, 663-64, 534 A.2d 1199 (1987);
State
v.
Brown,
199 Conn. 47, [57-58], 505 A.2d 1225 (1986);
State
v.
Howard,
187 Conn. 681, 688, 447 A.2d 1167 (1982).”
State
v.
Curley,
25 Conn. App. 318, 328, 595 A.2d 352, cert. denied, 220 Conn. 925, 598 A.2d 366 (1991). Therefore, even if the admission of this evidence prejudicially impacted the defendant because it may have caused the jury to believe that he was a “chronic drunk driver,” that impact was lessened, if not eliminated, by this limiting instruction. See
State
v.
Lemay,
105 Conn. App. 486, 493, 938 A.2d 611 (“[i]n the absence of a showing that the jury failed or declined to follow the court’s instructions, we presume that it heeded them” [internal quotation marks omitted]), cert. denied, 286 Conn. 915, 945 A.2d 978 (2008). This claim, therefore, fails.
n
Next, the defendant claims that prosecutorial impropriety deprived him of a fair trial. Specifically, he argues
that the state impermissibly bolstered Anderson’s testimony by improperly referring to evidence that was not in the record during its closing argument and thus depriving the defendant of a fair trial. We disagree.
Although the defendant did not object at trial to any of the state’s comments that he now claims improperly referred to evidence that was not in the record, “a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under
State
v.
Williams,
204 Conn. 523, 535-40, 529 A.2d 653 (1987). ... In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial.” (Internal quotation marks omitted.)
State
v.
Ovechka,
118 Conn. App. 733, 743-44, 984 A.2d 796, cert. denied, 295 Conn. 905, 989 A.2d 120 (2010). “Because the claimed prosecutorial [improprieties] occurred during closing arguments, we advance the following legal principles. [P]rosecutorial [impropriety] of a constitutional magnitude can occur in the course of closing arguments. ... In determining whether such [an impropriety] has occurred, the reviewing court must give due deference to the fact that [c]ounsel must be allowed a generous latitude in argument, as the limits of legitimate argument and fair comment cannot be determined precisely by rule and line, and something must be allowed for the zeal of counsel in the heat of argument. . . . Thus, as the state’s advocate, a prosecutor may argue the state’s case forcefully, [provided the argument is] fair and based upon the facts in evidence and the reasonable inferences to be drawn therefrom.” (Internal quotation marks omitted.) Id., 744. “If we conclude that prosecutorial impropriety has occurred, we then must determine, by applying the six factors enumerated in
State
v.
Williams,
[supra, 540], whether the entire trial was so infected with unfairness so as to deprive the defendant of his due process right to a fair trial. . . . These factors include the extent to which the impropriety was invited by defense conduct, the severity of the impropriety, the frequency of the impropriety, the centrality of the impropriety to the critical issues in the case, the effectiveness of the curative measures adopted and the strength of the state’s case.” (Internal quotation marks omitted.)
State
v.
Jordan,
supra, 117 Conn. App. 164. “[T]he touchstone of due process analysis in cases of allegedly] [harmful] prosecutorial [impropriety] is the fairness of the trial, and not the culpability of the prosecutor. . . . The issue is whether the prosecutor’s [actions at trial] so infected [it] with unfairness as to make the resulting conviction a denial of due process. ... In determining whether the defendant was denied a fair trial . . . we must view the prosecutor’s [actions] in the context of the entire trial.” (Internal quotation marks omitted.)
State
v.
Melendez,
291 Conn. 693, 714-15, 970 A.2d 64 (2009).
By stipulation, the state admitted into evidence the A-44
form Anderson had completed during the booking procedure on the night of the defendant’s arrest for operating a motor vehicle under the influence. Anderson had checked boxes on the form indicating that the defendant had “refused to perform” both the horizontal gaze nystagmus and the walk and turn test. During direct examination, Anderson testified that he did not conduct any sobriety tests because he had determined that the defendant was too intoxicated to perform them safely. During cross-examination, defense counsel questioned Anderson as to why he had checked the boxes
indicating that the defendant had refused to perform the tests in light of his testimony that he did not conduct the tests. Anderson responded that he was trained to check that box if a person was unable to perform. During her closing argument, defense counsel drew attention to the discrepancy between the A-44 form and Anderson’s testimony.
The state, in its rebuttal argument responded by stating: “A lot of attention is going to the A-44 form and the refusal to perform box. You are going to have [the A-44] with you when you go into the deliberation room, and I ask you to look at the boxes that are [on it], and I ask you to look—is there anything, is there any place in there that says [that the] defendant [is] unable to perform because of his safety? You won’t see a box marked like that. You will see a refusal to perform box, and that is the only one [available]. This [form] is not a North Branford form; this is a . . . Connecticut standardized form that was voted
on by the legislature, and they decided what was going to be in this form, not the town of North Branford and not . . . Anderson.” It is this last sentence that the defendant claims amounts to prosecutorial impropriety that deprived him of his due process right to a fair trial.
On the basis of our review of the record, we conclude that the statement at issue did, in fact, rise to the level of an impropriety. Nowhere is there any evidence referring to, let alone supporting, the notion that our General Assembly voted on and determined the contents of the A-44 report form.
As a result, the comment amounts to unsworn testimony, which is not proper in closing argument. See
State
v.
Jordan,
supra, 117 Conn. App. 166. This statement amounts to an impropriety.
Our conclusion that this statement was improper does not, of course, put an end to the inquiry. We still must determine whether this impropriety was egregious enough to deprive the defendant of his constitutional right to a fair trial, and, therefore, we next review it in the context of the whole trial using the aforementioned factors set out in
State
v.
Williams,
supra, 204 Conn. 540. As for the first factor, we find no evidence in the record to indicate that the improper remarks were invited by defense counsel. Defense counsel was entitled to call the jury’s attention to the inconsistencies in Anderson’s testimony concerning the reason for his
not performing the sobriety tests and the way in which he filled out the A-44 form. Moreover, nothing stated by defense counsel in her closing argument suggests that she was arguing that Anderson or North Branford was responsible for the content of the A-44 form, generally, but merely the content of the form used in processing the defendant.
We next proceed to the second
Williams
factor, the severity of the misconduct, and the high bar set for this factor by our Supreme Court in
State
v.
Thompson,
266 Conn. 440, 479-80, 832 A.2d 626 (2003).
In the present case, the prosecutor, by once stating that our legislature decided on the contents of the A-44 form, did not engage in repeated
Thompson
like patterns of bitter invective. See
State
v.
Hayward,
116 Conn. App. 511, 520, 976 A.2d 791, cert. denied, 293 Conn. 934, 981 A.2d 1077 (2009). By the
Thompson
standard, which constrains our review, we conclude that the prosecutor’s conduct was far less egregious than that in
Thompson
and that the defendant has not satisfied the severity prong. See id.
The third prong measures the frequency of the instances of the impropriety. Here, the impropriety was but one phrase found in the state’s rebuttal argument. This one instance in the course of the state’s rebuttal was not frequent. Cf.
State
v.
Jordan,
supra, 117 Conn. App. 169 (finding fourteen instances of impropriety over course of eighteen pages of transcripts frequent).
The fourth prong relates to the centrality of the impropriety to the issues of the case. The reference to facts that were not in evidence concerned the source of the content of the A-44 form itself and not the manner in which it was filled out by Anderson. The defendant’s contention that the state somehow bolstered Anderson’s testimony by suggesting that the content of the A-44 form itself was attributable to the legislature misses the mark. The central issue was not which governmental entity was responsible for the content of the A-44 but whether the defendant was operating a motor vehicle, on a public highway, while under the influence of intoxicating liquor or drugs. See
State
v.
Bereis,
117 Conn. App. 360, 365, 978 A.2d 1122 (2009).
Fifth, we assess the strength of the curative measures adopted by the court. The defendant did not object to the prosecutor’s statements or request any curative instructions, and the court did not give any. Although the court did not provide the jury with any curative instructions, in the general jury charge, the court instructed the jury on the basic guiding principle that “[c]ertain things are not evidence, and you may not consider them in deciding what the facts are. These include, first, the arguments and statements by the lawyers. The lawyers are not witnesses, what they have said during closing arguments is intended to help you interpret the evidence but it is not evidence.” “In the absence of a showing that the jury failed or declined to follow the court’s [general] instructions, we presume
that it heeded them.” (Internal quotation marks omitted.)
State
v.
Gordon,
104 Conn. App. 69, 83-84, 931 A.2d 939, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007). There is no suggestion in the present case that the jury did not follow the court’s general instructions.
The last factor we review is the strength of the state’s case. Our Supreme Court has “never stated that the state’s evidence must have been overwhelming in order to support a conclusion that prosecutorial [impropriety] did not deprive the defendant of a fair trial.” (Internal quotation marks omitted.)
State
v.
Jordan,
supra, 117 Conn. App. 170. There was testimony that just prior to Anderson’s initiating the traffic stop, the defendant was driving on the wrong side of the road and that his truck was weaving about the roadway. When Anderson approached the truck, he observed that the defendant’s speech was slurred, his eyes were watery and he exuded a strong odor of alcohol on his breath. The defendant also was unable to stand and had to use his truck or have Anderson’s assistance to stay on his feet. The defendant fell asleep in the cruiser during the short drive to the police station and needed physical assistance to exit the vehicle and to enter the station where he refused to submit to a Breathalyzer test. See
State
v.
Morelli,
293 Conn. 147, 150, 976 A.2d 678 (2009) (defendant’s refusal to take Breathalyzer test raised statutory inference of guilt). There was sufficient testimony for the jury to conclude that the defendant was guilty of operating a motor vehicle while intoxicated. Despite the impropriety, the state’s case was strong.
On the basis of the foregoing, we cannot conclude that there is a reasonable likelihood that the state’s comment deprived the defendant of a fair trial. As a result, the defendant’s claim fails.
The judgments are affirmed.
In this opinion the other judges concurred.