State Of Conn. v. Reid.

• Citation: 1 A.3d 1204,123 Conn.App. 383
• Decision Date: 24 August 2010
• Docket Number: No. 29933.,29933.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Douglas REID.

123 Conn.App. 383

1 A.3d 1204

STATE of Connecticut

v.Douglas REID.

No. 29933.

Appellate Court of Connecticut.

Argued April 8, 2010.

Decided Aug. 24, 2010.

COPYRIGHT MATERIAL OMITTED.

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Elizabeth M. Inkster, senior assistant public defender, with whom was Peter G. Billings, deputy assistant public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Marc R. Durso, assistant state's attorney, for the appellee (state).

GRUENDEL, ROBINSON and BORDEN, Js.

GRUENDEL, J.

The defendant, Douglas Reid, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b) and possession of narcotics in violation of General Statutes § 21a-279(a). On appeal, the defendant claims that (1) the trial court improperly permitted expert testimony on an ultimate issue of fact, (2) the evidence adduced at trial was insufficient to sustain his conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project and (3) the court improperly instructed the jury on the intent element of §§ 21a-277(a) and 21a-278a(b). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of November 22, 2006, Officers William J. Simpson and Elson Morales of the Bridgeport police department conducted a foot patrol in Marina Village, a federally subsidized housing project. At approximately 4 p.m., they proceeded to the corner of Columbia Street and Johnson Street, a location of frequent narcotic transactions. As the officers entered an adjacent parking lot, they encountered several individuals and decided to conduct a “stop and talk,” known also as a warrant check. When they approached, the defendant backed away. Despite their instruction that the defendant come back, he resisted. As the other individuals in the parking lot moved forward, the officers witnessed the defendant remove a plastic bag from his pocket, which he tossed to the ground.

Upon recovering the plastic bag, the officers observed that it contained “packaged street level” narcotics. The bag contained ten glassine folds bound by a rubber band. As a result, the officers placed the defendant under arrest and conducted a search incident thereto, which produced four blue glassine folds in his hand and three white glassine folds in his pocket. Field tests performed on samples from the plastic bag recovered from the ground and the three white glassine folds confirmed the presence of narcotics, namely, heroin. At the same time, the four blue glassine folds tested negative. Neither money nor drug paraphernalia were found on the defendant.

The defendant's criminal prosecution followed. After a trial, the jury found the defendant guilty of possession of narcotics with intent to sell, possession of narcotics with intent to sell within 1500 feet of a public housing project and possession of narcotics. The court rendered judgment accordingly and thereafter sentenced him to a total effective term of twelve years incarceration and five years of special parole. From that judgment, the defendant appeals.

I

The defendant first claims that the court abused its discretion by permitting expert testimony on an ultimate issue of fact. ¹ Specifically, he claims that Simpson improperly opined on whether the defendant possessed the narcotics with the intent to sell. ² We disagree.

The portion of Simpson's testimony that is challenged on appeal is set forth in the following colloquy:

“[The Prosecutor]: ... Now, based on your training and experience, everything you've gone through and all the arrests you've made, when you find somebody that's in possession of some suspected narcotics that came back positive in the field test, and some suspected narcotics that came back negative in a field test, what is that indicative of?

“[The Witness]: Well, it depends on ... the quantity that he has on him, the packaging; but usually, if somebody's [going to] sell burn bags-that's what you call them, burn bags-it's usually for selling.

“[The Prosecutor]: And what is a burn bag, if you can just explain that?

“[The Witness]: Well, a burn bag is a misrepresentation ... of a drug, like ... well, I'll use crack, for instance. That's boiled down cocaine. If it's a misrepresentation, they might use soap, baking soda. Basically, the intent is to sell an individual who thinks it's narcotics; it's really not narcotics....

“[The Prosecutor]: Now ... when you've made arrests of sellers before, what is the typical quantity in packaging ... that's usually seized?

“[The Witness]: It varies. It varies off of, I mean, his actions. Just, basically, the quantity of-depending on what the drug is, say five or more, I mean, depending on where they're packaged ... how they're held. I mean, there's a lot that goes into it....

“[The Prosecutor]: Well, let me ask you this. When you ... arrest a buyer or a user ... suspected user ... how much narcotics are usually found on them?

“[The Witness]: Probably a slab [which] is another street term for crack or cocaine; probably one or two depending on how much money they had.

“[The Prosecutor]: So, once again ... if you ... had an arrest of somebody who had narcotics that are both positive and negative, and were packaged bundled in five or more as you've just testified to, what would that be indicative to? Would that be indicative of a seller or user?

“[Defense Counsel]: Objection, Your Honor.

“The Court: All right.

“[Defense Counsel]: That's speculation, and it goes to the ultimate issue.

“The Court: All right. You claim it?

“[The Prosecutor]: Yes, I do.

“The Court: Okay, just briefly.

“[The Prosecutor]: Your Honor, [under State v. Nelson, 17 Conn.App. 556, 555 A.2d 426 (1989), and State v. Vilalastra, 207 Conn. 35, 540 A.2d 42 (1988), it] does not go to the ultimate issue. The officer ... is not testifying as to the defendant's intent or the defendant's intent in this case. He's testifying, basically, on his training and experience in the arrest that he made, and those cases are directly on point.

“The Court: Anything further?

“[Defense Counsel]: No, Your Honor.

“The Court: All right, overruled....

“[The Prosecutor]: Once again, someone who is arrested by yourself in the past that's found with narcotics that tested positive, suspected narcotics that tested negative bundled in five or more, as you testified, what is that indicative [of] to you?

“[The Witness]: An intent to sell, like-the statute is with intent to sell.

“[The Prosecutor]: Okay.

“[The Witness]: So, someone who's trying to sell narcotics.”

The issue before us is whether the court improperly admitted expert testimony on the ultimate question for the jury of whether the defendant possessed the narcotics with the intent to sell. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court's decision will not be disturbed.” (Internal quotation marks omitted.) State v. Perkins, 271 Conn. 218, 264, 856 A.2d 917 (2004). That discretion extends to “expert testimony concerning the sale of illicit drugs.” State v. Vilalastra, supra, 207 Conn. at 45, 540 A.2d 42. Under Connecticut law, an expert witness “may testify that certain behavior by a defendant or his possession of particular items is conduct similar to that engaged in by the typical drug dealer.” Id. At the same time, the state is forbidden from soliciting an expert's opinion on whether a particular defendant “possessed illegal drugs for sale or consumption.” Id.; see also State v. Campbell, 225 Conn. 650, 656-57, 626 A.2d 287 (1993) (police detective could testify about patterns common to drug sales, but it was improper for him “to testify to his opinion on the ultimate fact of whether the defendant possessed the narcotics with the intent to sell”).

In the present case, Simpson testified in response to a series of hypothetical questions based on his training and experience. The questions concerned prior arrests made by Simpson and referred to “somebody” or “someone”; they never referenced the defendant. See State v. Abreu, 34 Conn.App. 629, 633-34, 643 A.2d 871, cert. denied, 230 Conn. 915, 645 A.2d 1019 (1994). Similarly, Simpson's answers did not go beyond the scope of the questions, as evinced by his testimony that a hypothetical question indicated “ someone who's trying to sell narcotics.” (Emphasis added.) Simpson also testified as to the quantity of narcotics that a suspect may possess and the manner in which the narcotics may be packaged, which plainly is permissible. See State v. Vilalastra, supra, 207 Conn. at 42, 540 A.2d 42; State v. Francis, 90 Conn.App. 676, 682, 879 A.2d 457, cert. denied, 275 Conn. 925, 883 A.2d 1248 (2005); State v. Ogrinc, 29 Conn.App. 694, 699, 617 A.2d 924 (1992). His testimony is a quintessential example of appropriate testimony on the custom and practice of narcotics traffickers generally. State v. Vilalastra, supra, at 45, 540 A.2d 42; State v. Nelson, supra, 17 Conn.App. at 566, 555 A.2d 426. Simpson did not opine as to whether the narcotics recovered were possessed by the defendant for either personal use and consumption or with the intent to sell or dispense; cf. State v. Vilalastra, supra, at 43, 540 A.2d 42; or whether the conduct of the defendant fit the custom and practice he described. See State v. Walton, 227 Conn. 32, 61, 630 A.2d 990 (1993). Rather, it properly was left to the jury to determine whether the actions of the defendant fit that description.

We conclude that the challenged testimony does not include an opinion on the...