State Of Conn. v. Hedge.
| Citation | 1 A.3d 1051,297 Conn. 621 |
| Decision Date | 03 August 2010 |
| Docket Number | No. 18161.,18161. |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Kareem HEDGE. |
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Pamela S. Nagy, special public defender, for the appellant (defendant).
Susann E. Gill, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, former state's attorney, and Joseph J. Harry, senior assistant state's attorney, for the appellee (state).
ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and ZARELLA, Js. *
The defendant, Kareem Hedge, appeals from the judgment of conviction, rendered after jury trials, of unlawfully transporting cocaine and heroin with intent to sell by a person who is not drug dependent in violation of General Statutes § 21a-278(b), 1 unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b), possession of cocaine in violation of General Statutes § 21a-279(a), and failure to appear in the first degree in violation of General Statutes § 53a-172(a)(1). The trial court rendered judgment in accordance with the jury verdicts and sentenced the defendant to a total effective sentence of thirteen years imprisonment. On appeal, the defendant claims that (1) his constitutional right to present a defense 2 with respect to the drug charges was violated when the trial court precluded him from introducing evidence of third party culpability, (2) the evidence was insufficient to support his conviction of unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project, (3) his fifth amendment right against double jeopardy 3 was violated when the trial court permitted the state to try him for unlawfully transporting heroin with intent to sell because he previously had been acquitted of the same charge, and (4) the evidence was insufficient to support his conviction of failure to appear in the first degree. We agree with the defendant, first, that the trial court's exclusion of third party culpability evidence violated his right to present a defense with respect to the drug charges, second, that the evidence was insufficient to support his conviction of unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project and, third, that his conviction of unlawfully transporting heroin with intent to sell violated his right against double jeopardy. Accordingly, we conclude that his conviction on the drug charges must be reversed and that he is entitled to a judgment of acquittal on the charge of unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project and a new trial on the remaining drug charges. We affirm the trial court's judgment with respect to the defendant's conviction of failure to appear in the first degree.
The jury reasonably could have found the following facts. In the early morning hours of May 11, 2002, Officers Nick Grasso and Raymond Ryan of the Bridgeport police department were patrolling the area around Marina Village, a public housing project in the city of Bridgeport. At the time, they were assigned to the Mayor's Office of Special Targets (MOST) detail, which was charged with conducting “proactive police work.” The area around Marina Village was known to the officers for its heavy drug trafficking and other crime. At approximately 1:30 a.m., Grasso and Ryan observed the defendant driving a tan Toyota Camry heading northbound on Columbia Street. The vehicle was owned by the defendant's girlfriend, Renita Lathrop. There were no other vehicles on the road when the officers observed the defendant. When the defendant came to the intersection of Columbia Street and Johnson Street, he turned right onto Johnson Street, which was the only direction he could turn at that intersection. The officers observed that the defendant had failed to use his turn signal and immediately pulled him over. Grasso approached the driver's side of the defendant's vehicle while Ryan approached the passenger's side. Both officers were carrying flashlights. Grasso asked the defendant for his driver's license, vehicle registration and proof of insurance. The defendant informed the officer that he did not have his license in his possession and proceeded to look in the glove compartment and the center console compartment for the other documents. While the defendant was searching for those documents, Grasso shined his flashlight inside the vehicle and noticed “loose cash” on or around the front passenger seat or center console, as well as a single, small Ziplock bag containing what appeared to be narcotics. Grasso immediately ordered the defendant out of the vehicle and placed him under arrest. After placing the defendant in the back of his police cruiser, Grasso told Ryan about the bag of narcotics that he had seen and asked him to return to the defendant's vehicle to retrieve it and to search for additional contraband. Ryan had not noticed the Ziplock bag when he shined his flashlight inside the automobile even though, in contrast to Grasso, he had an unobstructed view of the center console and the front passenger seat from where he was standing.
Ryan, who recently had completed a course on motor vehicle searches and secret compartments, searched the defendant's vehicle. While examining the front seats, he noticed that the front passenger side rug was pulled out from under the dashboard. When he examined the area more closely, he found a black pouch containing eighty-eight small Ziplock bags of cocaine in a hidden compartment under the dashboard. He then searched the driver's side of the vehicle and discovered another hidden compartment, which held a black pouch containing approximately 100 “slabs” of cocaine and fifteen “folds” of heroin. The total amount of cash that was seized from the vehicle was $59.
Following his arrest, the defendant was charged with possession of opium with intent to sell by a person who is not drug dependent, possession of cocaine with intent to sell by a person who is not drug dependent, possession of narcotics with intent to sell within 1500 feet of a public housing project and failure to appear in the first degree. The defendant elected to be tried by a jury, and, following the evidentiary portion of the trial, the trial court dismissed the charge of possession of opium with intent to sell by a person who is not drug dependent on the ground that the state had failed to prove that the substance that the defendant possessed was, in fact, opium. Thereafter, the jury was unable to reach a verdict as to the remaining drug charges but found the defendant guilty of failure to appear in the first degree. The trial court declared a mistrial as to the remaining drug charges and sentenced the defendant to five years imprisonment on the failure to appear charge. The state elected to retry the defendant and, prior to retrial, filed an amended information charging the defendant with unlawfully transporting “a narcotic substance” with intent to sell by a person who is not drug dependent, unlawfully transporting a narcotic substance within 1500 feet of a public housing project, and possession of a narcotic substance. On the first day of trial, the state filed a second amended information charging the defendant with unlawfully transporting “cocaine and heroin” with intent to sell by a person who is not drug dependent, unlawfully transporting cocaine and heroin with intent to sell within 1500 feet of a public housing project, and possession of cocaine. The jury found the defendant guilty of all charges, and the trial court rendered judgment in accordance with the jury's verdict. 4 The defendant appealed to the Appellate Court from the judgment of conviction, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. Additional facts and procedural history will be set forth as necessary.
The defendant first claims that his constitutional right to present a defense was violated when the trial court excluded evidence, proffered by the defendant, that Kim Jackson, a convicted drug offender, had driven Lathrop's vehicle within twenty-four hours of the defendant's arrest and, on previous occasions, had left drugs and money in that vehicle. 5 The state contends that the defendant failed to preserve his claim because he did not offer the excluded evidence at trial for the purpose of establishing third party culpability but, rather, merely to demonstrate that other individuals had access to the vehicle. The state also maintains that, even if the claim is preserved, the trial court did not abuse its discretion in excluding the evidence because the defendant failed to establish a direct connection between Jackson and the drugs. Specifically, the state argues that the defendant did not proffer testimony that anyone had seen Jackson hiding the drugs in the vehicle, that Jackson actually had possessed drugs while driving the vehicle, or that Jackson had arranged to regain possession of the vehicle at a later time for the purpose of retrieving the drugs. Finally, as an alternative basis for upholding the trial court's exclusion of the proffered evidence, the state asserts that the evidence is inadmissible under §§ 4-4(a) 6 and 4-5(a) 7 of the Connecticut Code of Evidence, which preclude, with certain exceptions not applicable to this case, the admission of evidence of a person's bad character and other crimes, wrongs or acts. We conclude that the defendant's claim is preserved and that his right to present a defense was violated as a result of the trial court's exclusion of the proffered evidence.
The following facts and procedural history are relevant to our resolution of this claim. At...
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