State Of Conn. v. Pettigrew., 29405.

• Decision Date: 21 September 2010
• Docket Number: No. 29405.,29405.
• Citation: 3 A.3d 148,124 Conn.App. 9
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Corey PETTIGREW.

124 Conn.App. 9

3 A.3d 148

STATE of Connecticut

v.Corey PETTIGREW.

No. 29405.

Appellate Court of Connecticut.

Argued April 19, 2010.

Decided Sept. 21, 2010.

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Pamela S. Nagy, special public defender, for the appellant (defendant).

Toni M. Smith-Rosario, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Joseph C. Valdes, senior assistant state's attorney, for the appellee (state).

BISHOP, ALVORD and SCHALLER, Js.

SCHALLER, J.

The defendant, Corey Pettigrew, appeals from the judgments of conviction, rendered after a jury trial, of two counts of conspiracy to distribute narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48(a)(2) and 21a-278(b), one count of attempt to distribute narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-49(a)(2) and 21a-278(b), two counts of conspiracy to distribute narcotics within 1500 feet of a public housing project in violation of General Statutes §§ 53a-48(a) and 21a-278a(b), and one count of attempt to distribute narcotics within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b). On appeal, the defendant claims that (1) the trial court improperly consolidated two separate cases against him for trial, (2) § 21a-278a(b) as applied to him is unconstitutionally vague, (3) the state's evidence was insufficient to prove that he intended to distribute narcotics within 1500 feet of a public housing project in either instance and (4) his multiple sentences for conspiracy violate double jeopardy. We agree with the defendant's final claim, reverse the judgments as to the sentence that was imposed and remand the case for resentencing. We affirm the judgments of the trial court in all other respects.

The following facts and procedural history are relevant to the issues presented in the defendant's appeal. The charges against the defendant stemmed from two separate incidents. The jury reasonably could have found the following facts as to the July 21, 2006 incident. Noor Mohammed, a taxicab driver, was arrested and, while police officers searched his vehicle, his cellular telephone rang, and an officer answered it. The caller, later identified as the defendant, stated that he had “the nine” that Mohammed wanted. ¹ “The nine” referred to nine bags of crack cocaine that the officers originally intended to purchase from Mohammed and which Mohammed had indicated that he would obtain but did not have at the time of his arrest. Officers used Mohammed's taxicab and cellular telephone to arrange for the purchase of the narcotics, and the defendant and Tony Wilson were arrested when they approached the taxicab. The police recovered eight bags of crack cocaine that Wilson had carried and cash in the amount of $740 that the defendant had in his pockets, $440 of which consisted of $20 bills or smaller.

The jury reasonably could have found the following facts as to the March 13, 2007 incident. Police officers observed that Robert Moore and the defendant stood next to each other on the street in an area known for drug activity. Moore handed narcotics to Michael Hill, who rode away on his bicycle and engaged in a transaction. When Hill returned, he gave money to the defendant, who put it in his pocket. When Hill was stopped by uniformed police officers in view of the men, an officer observed Moore remove narcotics from his pocket and place them in a planter across the street from where the men had been standing. ² Officers recovered five bags of crack cocaine from the planter and arrested Moore and the defendant. At the time of his arrest, the defendant had $708 in his pocket, $408 of which consisted of $20 bills or smaller. ³

The court granted the state's motion to join the two informations for trial, and the defendant thereafter was charged in a combined, six count substitute information dated July 13, 2007. The defendant was convicted on all counts and sentenced to a total effective term of twelve years imprisonment, suspended after eight years, with five years probation. This appeal followed. Additional facts will be set forth as necessary.

IJOINDER

The defendant claims that the court improperly joined two separate cases against him for trial. Specifically, the defendant claims that under State v. Boscarino, 204 Conn. 714, 722-24, 529 A.2d 1260 (1987), the court improperly joined the cases because they did not involve discreet, easily distinguishable factual scenarios. The defendant claims, in the alternative, that when this court applies the Boscarino standard, it assumes that the jury has been properly instructed to consider the evidence in each case separately. He claims that because the court improperly instructed the jury regarding the cross admissibility of the evidence, the fundamental predicate for the application of the Boscarino standard is absent. We reject both claims.

We set forth the standard of review and applicable principles of law. “Despite the existence of [the risk of prejudice] this court consistently has recognized a clear presumption in favor of joinder and against severance ... and, therefore, absent an abuse of discretion ... will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges.” (Internal quotation marks omitted.)

State v. Randolph, 284 Conn. 328, 338, 933 A.2d 1158 (2007). “The court's discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial. Consequently, we have identified several factors that a trial court should consider in deciding whether a severance may be necessary to avoid undue prejudice resulting from consolidation of multiple charges for trial. These factors include: (1) whether the charges involve discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant's part; and (3) the duration and complexity of the trial.... If any or all of these factors are present, a reviewing court must decide whether the trial court's jury instructions cured any prejudice that might have occurred.” (Internal quotation marks omitted.) Id. These three factors, often referred to as the Boscarino factors, were articulated in State v. Boscarino, supra, 204 Conn. at 722-24, 529 A.2d 1260.

A

The defendant claims that joinder was improper under the standard articulated in State v. Boscarino, supra, 204 Conn. at 722-24, 529 A.2d 1260. Specifically, he argues that joinder was improper because the two cases did not involve discreet, easily distinguishable factual scenarios. ⁴ We disagree.

The record reveals the following procedural history that is relevant to the defendant's claim. Prior to trial, the state filed a motion to consolidate the two cases. The defendant objected to the motion, arguing that there was a risk of prejudice in joining the cases for trial. He argued that the facts in each case were difficult to distinguish. For example, in each case, a different third party was the actual supplier of the narcotics. In each case, the officers claimed to have found more than $700 on the defendant's person. One incident occurred near the intersection of Mill River Road and Stillwater Avenue in Stamford; the other occurred on Stillwater Avenue in Stamford. The defendant argued that judicial economy would not be served because the witnesses differed in each case.

The court overruled the defendant's objection and granted the state's motion. The court noted that nothing about the defendant's alleged conduct was otherwise shocking or heinous. The court found that the allegations were discreet and easily distinguishable because they were separated by a number of months and noted that so long as the state presented evidence in an orderly fashion, there was no risk of jury confusion. Having considered these factors, the court granted the state's motion.

In granting the state's motion, the court relied on the Boscarino factors. The court concluded that there was no allegation or evidence of brutal or shocking conduct. “This court has held that charges involving the sale of narcotics are not violent.” State v. Barnes, 112 Conn.App. 711, 727, 963 A.2d 1087 (2009). The court reasonably concluded that the charges involved discrete, easily distinguishable factual scenarios. It is unlikely that the jurors would confuse the taxicab incident of July, 2006, with the street activities of March, 2007. See id., at 726-27, 963 A.2d 1087 (drug crimes alleged in each information occurred on different dates at different locations and were discrete and easily distinguishable). Finally, when ruling on the motion for joinder, the court reasonably could have concluded that the case would not be particularly lengthy or complex. See footnote 4 of this opinion. Accordingly, the court did not abuse its discretion in granting the state's motion.

B

The defendant claims that when this court reviews a trial court's decision to join two informations for trial under the Boscarino standard, it assumes that the jury has been properly instructed to consider the evidence adduced in each case separately and independently. He claims that in the present case, the court did not specifically instruct the jury that it could not consider the totality of the evidence in deciding each individual count. In addition, he argues, certain instructions led the jury to believe that it could consider all the evidence in deciding each case. The defendant claims that because the court's instructions regarding cross admissibility were improper, the fundamental predicate for the application of the Boscarino standard is absent such that the case should be remanded for...