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STATE OF CONNECTICUT v. DEAN BRIAN LEBLANC
                (AC 34814)
                Beach, Robinson and Sheldon, Js.*
     Argued December 9, 2013—officially released March 4, 2014

  (Appeal from Superior Court, judicial district of
   Hartford, geographical area number twelve, C.
                    Taylor, J.)
  Laila Haswell, assistant public defender, for the
appellant (defendant).
   Emily D. Trudeau, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, Adam B. Scott, supervisory assistant
state’s attorney, and Alexander Beck, deputy assistant
state’s attorney, for the appellee (state).
                          Opinion

   SHELDON, J. The defendant, Dean Brian LeBlanc,
appeals from the judgment of conviction rendered
against him after a jury trial on charges of operating a
motor vehicle while under the influence of alcohol in
violation of General Statutes § 14-227a (a) (1) and
operating a motor vehicle while having an elevated
blood alcohol content in violation of § 14-227a (a) (2).
The defendant claims that the trial court erred in deny-
ing his motion to suppress evidence regarding his
refusal to perform a field sobriety test and that, in admit-
ting evidence of his refusal, the court violated his consti-
tutional privilege against self-incrimination. We
conclude that even if the challenged evidence was
improperly admitted, its admission was harmless
beyond a reasonable doubt. Accordingly, we affirm the
judgment of the trial court.
   On the basis of the testimony and evidence adduced
at trial, the jury reasonably could have found the follow-
ing facts. On March 22, 2010, Demetria Jackson was
sitting in her car in the parking lot of a strip mall in
South Windsor, waiting to pick up a take-out order that
she had placed with a restaurant in that plaza. When
she exited her vehicle, the defendant walked out of the
adjacent bar and, as he walked to his vehicle, he uttered
an incomprehensible comment. Jackson ignored the
defendant and continued into the restaurant to retrieve
her order, while the defendant proceeded toward the
door of the vehicle parked next to hers.
   When Jackson returned to her car, she observed the
defendant still standing next to his vehicle. She smelled
a strong odor of alcohol and observed that the defen-
dant was having difficulty inserting his key into the
door lock of his vehicle. Jackson drove away, stopping
at a point nearby to further observe the defendant.
Concerned that the defendant was about to drive a
vehicle while intoxicated, Jackson called 911. While on
the telephone, she observed the defendant start his
vehicle and begin to drive. She testified that he was not
operating the vehicle in ‘‘a steady movement, but almost
like someone was stepping on the gas and then stepping
on the brake.’’ The defendant continued operating the
vehicle, as if attempting to get to the exit of the parking
lot, but he ‘‘kept turning back around as if he couldn’t
make his way toward the exit . . . almost like the
motion that a figure eight would make.’’ Jackson testi-
fied that the defendant ‘‘continued sort of driving . . .
as if he were trying to find the exit or just driving in
the parking lot’’ until another man exited the bar and
approached the defendant’s vehicle. The defendant
stopped and parked his vehicle, and began to converse
with the other man until police Officer Kevin Geraci
arrived.
  Upon his arrival at the scene, Geraci noticed that
the defendant’s vehicle was parked crookedly, with its
brake lights on. Geraci activated the emergency lights
on his patrol car, exited the car, and approached the
defendant’s vehicle. As he approached, the defendant’s
brake lights went off. Geraci first asked the other man
who had been speaking with the defendant if he had
been driving. The man stated that he had not been
driving and walked away. Thereafter, when Geraci
walked up to the window of the defendant’s vehicle,
the defendant immediately declared, ‘‘I wasn’t driving.
The keys weren’t in the ignition.’’ At that point, Geraci
had not yet asked the defendant anything. Geraci
smelled a strong odor of alcohol emanating from the
defendant’s vehicle, and therefore asked the defendant
for his driver’s license and vehicle registration. The
defendant responded, ‘‘Why? I wasn’t driving.’’ Geraci
repeated the same request to the defendant about one-
half dozen times, to which, on each occasion, the defen-
dant repeated the same response.
   Eventually, Geraci told the defendant to get out of his
vehicle. After the defendant complied with this order,
Geraci conducted what he described as ‘‘a weapon’s
patdown [of the defendant] for safety purposes.’’1 In so
doing, Geraci could smell the strong odor of alcohol
on the defendant’s breath, and thus asked him to take
a field sobriety test. In response, the defendant told
Geraci that he was not driving because he was drunk.
The defendant repeated that he was not driving three
or four times, and further told Geraci that he ‘‘never
left— never drove off the parking lot.’’ Geraci interpre-
ted the defendant’s responses as a refusal to take the
field sobriety test, and therefore placed the defendant
under arrest. Two chemical alcohol tests were later
administered on the defendant, which produced blood
alcohol levels of 0.172 and 0.17, respectively. The defen-
dant was charged with operating a motor vehicle while
under the influence of alcohol in violation of § 14-227a
(a) (1) and operating a motor vehicle while having an
elevated blood alcohol content in violation of § 14-227a
(a) (2).
   Prior to trial, on October 17, 2011, the defendant filed
a motion in limine seeking to suppress evidence of the
fact that he had refused to take a field sobriety test.
On March 16, 2012, during the trial, the court excused
the jury and held a hearing on the defendant’s motion.
The sole witness at the hearing was Geraci, who testi-
fied to his interaction with the defendant that led to
the defendant’s arrest. His testimony regarding that
interaction was not contested by the defendant in terms
of its factual accuracy. During oral argument on his
motion to suppress, the defendant expanded the scope
of his motion to include a challenge to his earlier state-
ment that he had not been driving. The defendant chal-
lenged the admissibility of his refusal to take the field
sobriety test on the legal ground that his refusal and
his statements were testimonial in nature and were
compelled by Geraci, and thus its admission violated
his constitutional privilege against self-incrimination.
The court denied the defendant’s motion and the trial
proceeded.
   The defendant was convicted of both charges of
operating under the influence. Following the convic-
tion, the state filed a part B information charging the
defendant as a subsequent offender in violation of § 14-
227a (g) (2), to which the defendant entered a plea
of nolo contendere. The trial court merged the two
operating under the influence counts and sentenced
the defendant to two years incarceration, execution
suspended after 450 days, and three years probation.
After trial, the defendant sought an articulation of the
trial court’s decision denying his motion to suppress.
In response, the court issued an articulation in which
it concluded that the defendant’s refusal to take a field
sobriety test was neither compelled nor testimonial.
This appeal followed.
   The defendant claims that the trial court erred in not
suppressing the following: Geraci’s testimony that the
defendant had refused to perform a field sobriety test;
the defendant’s statement, ‘‘Why? I wasn’t driving,’’ in
response to Geraci’s request that he perform a field
sobriety test; and his subsequent admission to Geraci
that he was drunk. The defendant claims that the evi-
dence was improperly admitted because it was testimo-
nial and compelled, and thus obtained in violation of
his constitutional privilege against self-incrimination.
The state disagrees with the defendant, arguing that
the challenged evidence was neither testimonial nor
compelled. It further contends that even if the evidence
was inadmissible, any error in admitting it into evidence
was harmless beyond a reasonable doubt. We agree
with the state that any error by the trial court in admit-
ting the challenged evidence was harmless beyond a
reasonable doubt.
   ‘‘[W]hen an improper evidentiary ruling is not consti-
tutional in nature, the defendant bears the burden of
demonstrating that the error was harmful. . . .
[W]hether [the improper admission of a witness’ testi-
mony] is harmless in a particular case depends upon a
number of factors, such as the importance of the wit-
ness’ testimony in the prosecution’s case, whether the
testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony
of the witness on material points, the extent of cross-
examination otherwise permitted, and, of course, the
overall strength of the prosecution’s case. . . . Most
importantly, we must examine the impact of the
[improperly admitted] evidence on the trier of fact and
the result of the trial. . . . [T]he proper standard for
determining whether an erroneous evidentiary ruling
is harmless should be whether the jury’s verdict was
substantially swayed by the error. . . . Accordingly, a
nonconstitutional error is harmless when an appellate
court has a fair assurance that the error did not substan-
tially affect the verdict. . . . The harmless error doc-
trine is rooted in the fundamental purpose of the
criminal justice system, namely, to convict the guilty
and acquit the innocent. . . . Therefore, whether an
error is harmful depends on its impact on the trier of
fact and the result of the case. . . . This court has held
in a number of cases that when there is independent
overwhelming evidence of guilt, a constitutional error
would be rendered harmless beyond a reasonable
doubt. . . . When an [evidentiary] impropriety is of
constitutional proportions, the state bears the burden
of proving that the error was harmless beyond a reason-
able doubt. . . . [W]e must examine the impact of the
evidence on the trier of fact and the result of the trial.
. . . If the evidence may have had a tendency to influ-
ence the judgment of the jury, it cannot be considered
harmless. . . . That determination must be made in
light of the entire record [including the strength of the
state’s case without the evidence admitted in error].’’
(Citation omitted; internal quotation marks omitted.)
State v. Coccomo, 302 Conn. 664, 716–18, 31 A.3d
1012 (2011).
  As noted, the evidence challenged by the defendant
concerned his refusal to take the field sobriety test.
That evidence, however, which he claims violated his
privilege against self-incrimination, is incriminating
only as to his intoxication, not as to whether he oper-
ated the vehicle. The evidence of the defendant’s intoxi-
cation was abundant. Both Jackson and Geraci testified
that the defendant smelled of alcohol and that his
speech was slurred. The state submitted the results of
two blood alcohol tests taken after the defendant was
arrested, both indicating a blood alcohol level more
than twice the legal limit. Thus, the evidence that the
defendant sought to suppress was cumulative of other
intoxication evidence submitted by the state.
   Moreover, the defendant did not contest at trial the
fact that he was intoxicated. He claimed, rather, that
he had not been driving his vehicle, a claim that is
belied by Jackson’s testimony and his own unchal-
lenged statement to Geraci that he never got the car
out of the parking lot. Because the evidence challenged
by the defendant incriminated him only as to intoxica-
tion, and his intoxication was not an issue at trial, we
conclude that even if the court improperly admitted the
evidence challenged by the defendant, a question that
we need not reach, the admission of that evidence was
harmless beyond a reasonable doubt.
   The judgment is affirmed.
   In this opinion the other judges concurred.
  * The listing of judges reflects their seniority status on this court as of
the date of oral argument.
  1
    The defendant has not challenged the legality of the patdown.
