State v. Baldwin

• Decision Date: 12 January 1993
• Docket Number: No. 14496,14496
• Citation: 224 Conn. 347,618 A.2d 513
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Carthaniel BALDWIN.

Page 513

618 A.2d 513

224 Conn. 347

STATE of Connecticut v. Carthaniel BALDWIN.

No. 14496.

Supreme Court of Connecticut.

Argued Oct. 30, 1992.

Decided Jan. 12, 1993.

Leonard M. Crone, with whom was Christopher Santarsiero, Certified Legal Intern, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Richard Palombo, Asst. State's Atty., for appellee (state).

Before CALLAHAN, BORDEN, BERDON, NORCOTT and KATZ, JJ.

KATZ, Associate Justice.

The defendant, Carthaniel Baldwin, appeals from a judgment of conviction, after a jury trial, of two counts of sale of a narcotic substance, of one count of possession of a narcotic substance with the intent to sell, and of being a subsequent offender of possession of a narcotic substance with the intent to sell, all in violation of General Statutes § 21a-277(a). ¹ He was thereafter sentenced to a term of imprisonment of thirty years on the subsequent offender count of possession of a narcotic substance with the intent to sell and seven years on each of the sale counts, to run consecutively, for a total effective sentence of forty-four years.

The defendant raises eight claims on appeal. In five of his claims, he asserts that the trial court improperly: (1) admitted evidence of his prior misconduct; (2) allowed expert testimony on an ultimate issue; (3) permitted testimony regarding destroyed evidence; (4) permitted thirty-one vials of cocaine to be admitted as evidence when only nine had been tested; and (5) imposed the sentence that it did. In two of the remaining three claims, the defendant asserts that the trial court deprived him of his right to a fair trial by: (1) neglecting to rule on his motion in limine regarding the use of his prior felony record for impeachment purposes; and (2) making inappropriate remarks during indoctrination of the jury. In his last claim, the defendant contends that there was insufficient evidence upon which to convict him of possession of a narcotic substance with the intent to sell. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 1, 1991, the Bridgeport police department and the Connecticut state police were jointly participating in the Save Our Streets drug program in Bridgeport. On that day, Trooper Thomas Bennett and Officer Michael Radozycki were conducting a surveillance of building 23 in Father Panik Village, which was known for heavy narcotics activity. The surveillance was set up at approximately 11 a.m. on the second floor of a vacant building across the street from building 23. The officers used high-powered binoculars to observe the courtyard area of building 23 and were particularly interested in a jog hallway known to be an area where narcotics were sold.

At approximately 11:45 a.m., they observed the defendant standing in the jog hallway. A blue Hyundai was driven into the courtyard. The driver, Thomas Brooks, got out of his car, spoke with Mark Wheeler, and both men approached the defendant. Brooks handed the defendant some money in exchange for several small items. Believing that a narcotics transaction had occurred, the officers radioed a description of Brooks and his vehicle to several unmarked police cars waiting in the area. Brooks drove the Hyundai out of the courtyard and headed west on Hamilton Avenue.

Seconds later, on the basis of the description transmitted over the police radio, Officer Carl Bergquist and Trooper Virgil Procaccini stopped the vehicle and arrested Brooks. Narcotics were not found on Brooks, but Barbara Stratton, who was riding in the front passenger seat, was found to be holding two plastic vials with green caps in her fist. The vials were subsequently tested by the state toxicology laboratory and found to contain crack cocaine.

The police continued their surveillance from the vacant building, and at approximately 12:25 p.m. they observed a blue Chevrolet driven by Sylvester Rogers enter the courtyard of building 23. Rogers got out of the vehicle and spoke with Wheeler. Both men then walked over to building 23, spoke with the defendant and handed him some money in exchange for several small items.

The surveillance officers again radioed the unmarked cars. In response to the radio transmission, Trooper Benjamin Chamble and Officer Robert Novia blocked a nearby street with their car. As the Rogers' vehicle approached, Chamble got out of the police vehicle and signaled to Rogers to stop. Rogers instead accelerated and drove onto the sidewalk, forcing Chamble to jump out of the way. A short chase ensued. Chamble and Novia were directly behind Rogers in their vehicle when Novia saw him throw several objects out of the driver's side window. Novia ultimately pulled the police vehicle alongside Rogers' vehicle and forced him off the road.

While Chamble arrested Rogers, Novia ran back and attempted to retrieve the discarded items. Although a crowd had gathered and began "picking up the evidence" that was lying in the middle of the street, Novia succeeded in recovering one plastic vial with a green top. Toxicological testing revealed that the vial contained crack cocaine.

Meanwhile, a crowd had gathered in the doorway of building 23. The surveillance officers called in all the available police officers involved in the operation to arrest the defendant and Wheeler. Just before the police cars reached the courtyard, however, the crowd dispersed and the defendant entered building 23. The unmarked police vehicles left the area, but Bergquist, after conducting an unsuccessful search for the defendant in building 23, decided to remain and hide upstairs in building 23 to see if the defendant would reappear.

Approximately forty-five minutes later, Wheeler and the defendant were spotted in the doorway of building 23 by the surveillance officers. The defendant handed Wheeler some paper money in exchange for a plastic bag. The surveillance officers radioed the unmarked cars to return to the area and alerted Bergquist. The defendant and Wheeler entered the building and began running up the stairs toward the second floor, where they were spotted by Bergquist. During a short chase, Bergquist observed the defendant reach into his right jacket pocket and throw a clear plastic baggie into an open, abandoned apartment. The defendant and Wheeler then ran out the front door and were apprehended by the officers. The surveillance officers continued to observe the scene from inside the vacant building and verified that the proper persons were arrested. Bergquist then retrieved the baggie from just inside the apartment doorway. The baggie contained thirty-one plastic vials. Field testing of one vial revealed the presence of cocaine.

Of the thirty-one vials discarded by the defendant, Joel Milzoff, a state toxicologist, tested nine, all of which were found to contain crack cocaine. Milzoff testified that the nine vials had been selected at random and that it had been a laboratory policy decision, based on the need for timely reporting of the results, not to test the remaining vials. Through Milzoff, the state introduced, over the defendant's objections, toxicological reports relating to the three vials connected to Rogers and Stratton. All three of those vials had tested positive for crack cocaine. The contents of the vials, however, had been destroyed by the division of consumer protection with permission of the police department because the underlying prosecutions of Rogers and Stratton had been resolved and it was mistakenly believed the retention of the cocaine was no longer necessary.

During a search of the defendant following his arrest, the police found $158 in his shoe and in his pants pocket. A search of Wheeler uncovered $705. No narcotics were found on Wheeler. At trial, Detective Nikoli Nikola testified that based on his experience and observation of narcotics users, a person possessing thirty-one vials would more likely be planning to sell them, rather than to use them himself.

Nikola also testified regarding prior misconduct of the defendant. Over the defendant's objection, Nikola testified that on April 13, 1989, he had been working as a member of a surveillance team assigned to observe suspected narcotics activity at an intersection in Father Panik Village. On that date, he had noticed the defendant motioning to and running up to cars. Following a brief verbal exchange with the occupants of the vehicles, the defendant had returned to his original position. Nikola testified that based on his training and experience he believed the defendant had been selling narcotics. After twenty minutes, the defendant was apprehended and found to be in possession of eight or nine plastic vials containing a white powder that subsequently tested positive for cocaine.

The defendant did not testify, although he called several witnesses. Brooks, Stratton and Rogers denied purchasing any narcotics from the defendant. Wheeler testified that he had been "hanging around" the area to buy narcotics, but that he had not sold narcotics or helped the defendant sell narcotics. He explained that he had pleaded guilty to narcotics charges because he wanted to obtain treatment. Additional facts pertinent to the issues raised are set forth below.

I

In his first claim, the defendant contends that the trial court incorrectly allowed Nikola to testify that on April 13, 1989, he saw the defendant engage in what he believed was a sale of narcotics. We disagree.

The law regarding admission of prior criminal acts is clear. "As a general proposition, evidence of guilt of other crimes, because of its prejudicial nature, is inadmissible to prove that a defendant is guilty of the crimes with which he is charged. State v. Holliday, 159 Conn. 169, 172, 268 A.2d 368 (1970); State v. Harris, 147 Conn. 589, 599, 164 A.2d 399 (1960). Such evidence is admissible for other purposes, however, such...