State v. Allan

• Citation: 131 Conn.App. 433,27 A.3d 19
• Decision Date: 20 September 2011
• Docket Number: No. 32125.,32125.
• Parties: STATE of Connecticutv.Nemiah ALLAN.
• Court: Appellate Court of Connecticut

131 Conn.App. 433

27 A.3d 19

STATE of Connecticut

v.Nemiah ALLAN.

No. 32125.

Appellate Court of Connecticut.

Argued April 12, 2011.Decided Sept. 20, 2011.

Katherine C. Essington, special public defender, for the appellant (defendant).Rita M. Shair, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and James R. Dinnan, senior assistant state's attorney, for the appellee (state).DiPENTIMA, C.J., and ALVORD and ESPINOSA, Js.ALVORD, J.

The defendant, Nemiah Allan, appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a–48 and 21a–278 (b).¹ On appeal, the defendant claims that the trial court improperly denied his motion for a judgment of acquittal. Specifically, he argues that the evidence was insufficient to sustain his conviction, and, therefore, he was deprived of his federal due process rights.² We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of April 15, 2009, the defendant was under surveillance by the Meriden police department, which was working in conjunction with agents of a Drug Enforcement Agency task force. The law enforcement officers, in unmarked cars, observed the defendant on Maple Street engaging in drug related activity.³ The officers also observed the defendant make a specific drug transaction with a man in a white van where money was provided to the defendant, who then entered the “stash house” on Maple Branch before returning to the van.⁴ The police followed the van and stopped its driver, Humberto Zarabozo, who told police that he had purchased crack cocaine from the defendant. The police recovered the crack cocaine from the van and subsequently arrested Zarabozo. The officers returned to their posts in the Maple Street area to observe the defendant further and again saw him engaged in activity consistent with drug dealing.

The law enforcement officers observed the defendant talking on a cell phone. Thereafter, they observed an Acura pull up outside 10 Maple Branch. The Acura flashed its lights, after which the defendant crossed the street and approached the passenger side of the vehicle. The defendant opened the door, causing the dome light to illuminate, so that he could lean into the vehicle through the open door to talk to the driver. After the defendant spoke to the Acura's driver for several minutes, the Acura departed Maple Branch. The officers followed the Acura and returned to the scene approximately one to two hours later to arrest the defendant.

When the police approached the defendant to arrest him, he resisted and attempted to flee the scene. The police subdued the defendant, arrested him, and read him his Miranda rights.⁵ The defendant subsequently told the police that the driver of the Acura went by the street name of “Fleet” and that Fleet had come to Maple Branch to “resupply” the defendant with crack cocaine, although he did not deliver the crack cocaine as promised. ⁶ The police were familiar with the name Fleet, as he was a known drug supplier. The defendant also provided the police with Fleet's cell phone number, which was the last outgoing call on a cell phone in the defendant's possession. The defendant then led the police to a nearby gas station to identify Fleet's girlfriend, Brandy Clayton. Using information gleaned from the defendant and Clayton, the police apprehended Fleet, whose real name is Kareem Thomas. The defendant was transported to the police station where he asked the booking officer what had happened to the “big fat white guy.” The booking officer testified that when he asked the defendant to whom he was referring, the defendant replied “the one that I sold drugs to,” presumably meaning Zarabozo.

The state charged the defendant with illegal sale of narcotics by a person who is not drug-dependent, sale of narcotics within 1500 feet of a school, possession of narcotics, conspiracy to sell narcotics by a person who is not drug-dependent, and interfering with an officer. The case was tried before a jury on December 2 and 3, 2009. Defense counsel made a motion to the trial court for a judgment of acquittal, which the court denied. The jury returned a verdict finding the defendant not guilty on the charges of sale of narcotics, sale of narcotics within 1500 feet of a school, and possession of narcotics and found him guilty of conspiracy to sell narcotics and interfering with an officer. Following the jury's verdict, the court sentenced the defendant to a total effective term of twelve years incarceration. This appeal followed.

The defendant claims that the trial court should have granted his motion for a judgment of acquittal because there was insufficient evidence to allow the jury to find him guilty beyond a reasonable doubt of the crime of conspiracy to sell narcotics. First, he argues that there was insufficient evidence to prove that he and his coconspirator, Thomas, had an agreement to further distribute the narcotics. Second, he argues that the state failed to prove that he or his coconspirator committed an overt act in furtherance of the conspiracy. Both claims are without merit.

In reviewing sufficiency of the evidence claims, we apply a two part test. “First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... While ... every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Jennings, 125 Conn.App. 801, 805–806, 9 A.3d 446 (2011). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty.” (Internal quotation marks omitted.) State v. Rodriguez, 93 Conn.App. 739, 749, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007).

“To prove the crime of conspiracy, in violation of § 53a–48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy.... The state is also obligated to prove that the accused intended that conduct constituting a crime be performed.... [I]t is not necessary to establish that the defendant and his coconspirators signed papers, shook hands or uttered the words we have an agreement.... Indeed, [b]ecause of the secret nature of conspiracies, a conviction is usually based on circumstantial evidence.... [A] conspiracy can be inferred from the conduct of the accused.” (Citations omitted; internal quotation marks omitted.) State v. Forde, 52 Conn.App. 159, 167–68, 726 A.2d 132 (1999), cert. denied, 248 Conn. 918, 734 A.2d 567 (1999).

Section 53a–48 (a) sets forth the elements of the crime of conspiracy. The state bore the burden of proving beyond a reasonable doubt that the defendant (1) with intent that conduct constituting a crime be performed, (2) agreed with one or more persons to engage in or cause the performance of such conduct, and (3) any one of them committed an overt act in pursuance of such conspiracy. See General Statutes § 53a–48 (a).

The defendant first claims that the evidence is insufficient because the state failed to prove beyond a reasonable doubt that he had an agreement with Thomas in the past to distribute narcotics or to distribute narcotics in the future. In other words, he argues that the state did not prove that the agreement provided some additional benefit to Thomas in his selling the drugs to the defendant. The defendant misunderstands the elements of the crime of conspiracy. Here, the defendant admitted that he called Thomas on a cell phone and made arrangements for Thomas to resupply him with crack cocaine, which the defendant intended to resell. Thomas then drove to Maple Branch to meet the defendant and, once he arrived, flashed the lights of the Acura to signal the defendant to approach the vehicle. The defendant's statements show that he had intent to buy narcotics from Thomas and that the defendant made arrangements with Thomas to be resupplied with crack cocaine. That agreement, in concert with an overt act, which is the subject of the defendant's second claim, is sufficient under Connecticut law to constitute a conspiracy. There are no elements enumerated in § 53a–48 (a) requiring the state to prove any future or past criminal acts in order to prove the crime of conspiracy.

Despite the fact that the state did not have a burden to prove that the defendant engaged in a past conspiracy or a future conspiracy to sell narcotics with Thomas, the defendant argues that we should adopt the so-called federal “buyer-seller exception” in evaluating charges of conspiracy to sell narcotics. Under the federal exception, “the seller cannot be considered to have joined a conspiracy with the buyer to advance the buyer's resale unless the seller has somehow encouraged the venture or has a...