State v. Aspinall

Decision Date25 March 1986
Docket NumberNo. 2886,2886
Citation506 A.2d 1063,6 Conn.App. 546
CourtConnecticut Court of Appeals
PartiesSTATE of Connecticut v. Dana P. ASPINALL.

Richard R. Brown, with whom, on brief, was Michael E. Grossmann, Hartford, for appellant (defendant).

Jeffrey L. Kline, Sp. Asst. State's Atty., with whom was Carl Schuman, Asst. State's Atty., for appellee (State).

Before HULL, SPALLONE and BIELUCH, JJ.

SPALLONE, Judge.

The defendant is appealing from the judgment of his conviction, after a jury trial, of two counts of selling cocaine in violation of General Statutes § 19-480(a). 1 The sales were made to Officer Jeffrey Hotsky and occurred on January 27, 1981, and February 2, 1981. At that time and for some time thereafter, Hotsky was acting in his capacity as an undercover officer for the Connecticut Statewide Narcotics Task Force. A warrant for the defendant's arrest was applied for and issued on October 21, 1982. The defendant was arrested on the following day, October 22, 1982. At the time of the illegal sales, the defendant was employed at the Village Vette Shop in Glastonbury. The sales occurred at the defendant's place of employment.

After hearings were held and before trial, the court denied the defendant's two motions to dismiss. The first motion claimed a violation of due process because of the long lapse of time between the dates of the alleged offenses and the issuance of the warrant and arrest. The second motion claimed that the statute under which the defendant was charged was unconstitutionally vague, ambiguous and unclear in that subsections (a) and (b) of that statute prescribed different penalties for the same offense.

Following a trial, the jury found the defendant guilty of both counts. The court sentenced the defendant to imprisonment for a term of three years on each count to run consecutively for an effective sentence of six years. Subsequently, the court vacated its prior sentence and resentenced the defendant to imprisonment on each count for a term of not less than six years nor more than twelve years to run concurrently for an effective sentence of not less than six years nor more than twelve years.

The defendant claims that the court erred (1) in denying the defendant's motion to dismiss because of the delay between the alleged commission of the crimes and the arrest, (2) in denying the defendant's further motion to dismiss on the ground that General Statutes § 19-480(a) and (b) violated the defendant's state and federal constitutional rights of equal protection and due process of law because of vagueness, ambiguity and lack of clarity, and (3) in failing to allow evidence of a third party's involvement with the crime. He also claims that he received ineffective assistance of counsel in violation of both his state and federal constitutional rights. The defendant's original preliminary statement of issues, filed December 29, 1983, contained a claim that the trial court erred when it resentenced the defendant to a longer term of imprisonment than that provided in the sentence which had been vacated. This issue, however, has not been briefed and is deemed to have been abandoned. State v. Samaha, 180 Conn. 565, 565 n. 1, 430 A.2d 1290 (1980); Deteves v. Deteves, 2 Conn.App. 590, 590 n. 1, 481 A.2d 92 (1984).

We have the advantage of the trial court's clear and authoritative memoranda of decision with respect to the defendant's first two claims of error. The court's memoranda reflect well reasoned, logical and rational responses to the defendant's motions. With regard to the first motion, the court found that the delay caused no prejudice to the defendant. To establish that a pre-arrest delay has caused a denial of the right to due process of law, the defendant must establish a specific showing of prejudice. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). Mere allegations of potential prejudice or dimmed memory are insufficient. State v. L'Heureux, 166 Conn. 312, 322, 348 A.2d 578 (1974); see State v. Morrill, 197 Conn. 507, 528, 498 A.2d 76 (1985). We cannot say that the trial court was clearly erroneous in finding that there was no showing by the defendant of any actual significant prejudice caused by the delay. State v. Hodge, 153 Conn. 564, 571, 219 A.2d 367 (1966).

The defendant's second claim of error, that General Statutes (Rev. to 1981) § 19-480(a) and (b) are unconstitutional because they proscribe the same crime, but provide different penalties for violation, cannot be sustained. Prior to trial, the defendant moved to dismiss the information on the ground that subsections (a) and (b) of General Statutes (Rev. to 1981) § 19-480 provide different penalties for the same offense and, therefore, violated the defendant's constitutional rights. Subsection (a) reads in pertinent part: "Any person who ... sells ... any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned...." The pertinent language employed in subsection (b) of the statute is as follows: "Any person who ... sells ... any controlled substance, except a hallucinogenic substance other than marihuana, or a narcotic substance except as authorized in this chapter, may, for the first offense, be fined not more than one thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned...." The defendant's claim is based on the placement of the comma after the word "marihuana" in subsection (b) which specifically, and merely as a matter of punctuation, is troublesome. As the trial court noted, however, and with this we entirely agree, the statute must be examined "with more than a grammarian's interest."

To begin with, the defendant was charged, tried, convicted and sentenced under § 19-480(a) without reference at any time to § 19-480(b). Whatever reference was made to subsection (b) came about because of the defendant's motion to dismiss. Subsection (b) was never a part of the case. Nevertheless, the trial court correctly applied the principles of law that govern the construction of statutes. Where, as here, a question of constitutionality is raised, the court must presume the statute's validity and sustain the legislation unless it clearly violates constitutional principles. If there is a reasonable ground for upholding the legislation, courts assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose. State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477 (1956). No statute should be held void for uncertainty if a practicable or sensible effect may be given it. State v. Andrews, 108 Conn. 209, 213, 142 A. 840 (1928). Additionally, a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning. State v. Pickering, 180 Conn. 54, 61-62, 428 A.2d 322 (1980); see State v. Tyson, 195 Conn. 326, 332, 487 A.2d 1091 (1985); State v. Weber, 6 Conn.App. 407, 416, 505 A.2d 1266 (1986).

By definition contained in General Statutes § 19-443, 2 hallucinogens, narcotics and marihuana are all included in the general term "controlled substance." General Statutes § 19-443(9). Cocaine is specifically categorized as a "narcotic substance." General Statutes § 19-443(30). The essence of the defendant's claim is that he could be prosecuted under § 19-480(a) or (b) for the charge of selling cocaine and, therefore, would be subject to different penalties. There is no doubt that, under the circumstances in this case, the defendant was properly charged with a violation of § 19-480(a) which forbids the sale of all controlled substances which are hallucinogens, except marihuana, and unauthorized narcotics, which by definition includes cocaine. On the other hand, the defendant, upon a proper construction of the statute, cannot under the circumstances in this case, be charged under § 19-480(b) which proscribes the sale of a controlled substance including marihuana, but excluding other hallucinogens and unauthorized narcotic substances. An analysis of the pertinent statute indicates a pattern by the legislature of arranging and dividing the various sections into subsections which obviously reflects a legislative intent to list first the more onerous substances along with an appropriate heavier penalty followed, in subsequent subsections, by what the legislature deemed to be less onerous substances along with appropriate lesser penalties. This pattern is ascertainable throughout the pertinent sections of the chapter. 3

We hold that the trial court correctly construed § 19-480(a) and (b) and we cannot find error in the court's conclusion that the statutes were not ambiguous as they pertained to the proscribed conduct, that the defendant was provided fair warning, and that the defendant's right to equal protection of the law was not violated. A misplaced or superfluous comma should never be interpreted in a manner that would thwart and frustrate the public policy expressed in the statute.

The defendant's third claim of error is founded on the right of every defendant to give evidence concerning a third party's involvement with the crime as long as there is some evidence which directly connects the third party with the crime. Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974).

There was evidence submitted in this case that another person named Dana, whose height and hair color resembled the defendant's, and whose last name was McGann, was employed at the same place and at the same time as the defendant. McGann's vehicle was alleged to have been at the premises when a drug transaction...

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    ...S.Ct. 2048, 18 L.Ed.2d 1006 (1966) (ignoring statute's punctuation where inconsistent with legislative intent); State v. Aspinall, 6 Conn.App. 546, 550, 506 A.2d 1063 (1986) (same). Because the jury's only duty was to determine whether the defendant's acts constituted a "delivery," the tria......
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