STATE v. TIMOTHY POPELESKI, SC 18250

Judicial District of Hartford at Manchester G.A. 12

 Criminal; Juror Misconduct; Evidence; Whether Trial Court Properly Dismissed a Juror After he had a Dispute with a Judicial Marshal; Whether Evidence Regarding Horizontal Gaze Nystagmus Test was Inadmissible on the Ground that the Test was not Performed in Compliance with Standards Established by the National Highway Traffic Safety Administration.  The defendant was charged with driving while under the influence of alcohol, reckless driving and evasion of responsibility.  During the course of the trial, a juror became involved in a dispute with a judicial marshal regarding the juror's possession of a knife.  The trial court questioned the juror about the dispute, and the juror stated that the marshal had treated him like a criminal and had acted viciously towards him.  After the juror was excused for the lunch recess, the court informed the parties that, absent any strong objections, it intended to dismiss the juror.  The defendant objected to the juror's dismissal on the ground that his conduct would not have any impact upon his ability to sit as a fair and impartial juror.  The prosecutor disagreed, arguing that the juror's negative interactions with the marshal could be held against the state.  The court decided to excuse the juror, stating that it was concerned about his disruptive behavior and the manner in which he answered the court's questions, which it described as nearly contemptuous.  Another dispute arose at trial concerning the validity of a horizontal gaze nystagmus (HGN) test that was administered to the defendant at the time of his arrest in order to determine whether his eyes revealed signs of alcohol consumption.  In a motion in limine, the defendant argued that the court should preclude the admission of any evidence regarding the HGN test on the ground that the test was not performed in compliance with the standards that had been established by the National Highway Traffic Safety Administration (NHTSA).  He further claimed that an evidentiary hearing was required to resolve the motion.  Without conducting an evidentiary hearing, the court denied the motion, ruling that the issue regarding the validity of the HGN test related to the weight, not the admissibility, of the evidence.  After the arresting officer testified, the defendant filed a motion to strike, arguing that the testimony revealed that in contravention of the NHTSA standards, the officer had improperly combined two distinct aspects of the HGN test, namely, the "equal tracking" phase, which assesses whether both eyes can follow an object together, and the "lack of smooth pursuit" phase, which determines whether the eyes jerk or bounce as they follow a smoothly moving stimulus such as a pen.  The court denied the motion to strike, and, subsequently, the defendant was convicted as charged.  In this appeal, the Supreme Court will determine whether the foregoing rulings were proper.