State v. Barlow

• Citation: 418 A.2d 46,177 Conn. 391
• Court: Supreme Court of Connecticut
• Decision Date: 24 April 1979
• Parties: STATE of Connecticut v. Richard R. BARLOW.

Page 46

418 A.2d 46

177 Conn. 391

STATE of Connecticut v. Richard R. BARLOW.

Supreme Court of Connecticut.

Argued Feb. 13, 1979.

Decided April 24, 1979.

Igor I. Sikorsky, Jr., Hartford, for appellant (defendant).

Bernard D. Gaffney, Asst. State's Atty., with whom, on the brief, was George D. Stoughton, State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

COTTER, Chief Justice.

The defendant was charged with possession of cocaine, a narcotic substance, with intent to sell, in violation of Public Acts, 1975, No. 75-567, § 65(a). ¹ A jury found him guilty and he has taken an appeal from the judgment rendered on the verdict.

At about 4 p. m. on March 19, 1976, Officer John Badolato of the capitol region crime squad in the company of other crime squad officers went to a motor inn in East Hartford. Badolato occupied one of the rooms at the inn and the other officers occupied an adjoining room. An informant, Chris Falk, was with him in the room and their objective was to meet with Barlow, who was known to both Badolato and Miss Falk. A meeting was arranged by telephone, and shortly after 6 p. m. the defendant arrived at the room where, in the presence of Miss Falk, he handed Officer Badolato a plastic bag containing 27.4 grams of cocaine in return for which he was to receive the agreed sum of $1600. Before the actual exchange took place, however, the officers in the adjoining room entered and placed Barlow under arrest. He was informed of his constitutional rights in the motel room, and later at police headquarters he was reminded again that he could remain silent. That evening at police headquarters a conversation ensued between Barlow and Officers Badolato and Newman. During the conversation Badolato remarked that he had experienced difficulty locating the defendant, to which Barlow stated that he had been in Florida. When Badolato said that it must be nice to be able to go to Florida, Barlow responded, inter alia, that he had been dealing for seven years, it was an easy way to make money, and he had never been caught before.

The first question submitted by the defendant in his appeal to this court is whether the trial court erred in allowing Officer Badolato to testify as to certain statements allegedly made by the defendant that he had been dealing for seven or eight years. In furtherance of this claim, the defendant argues that his statements, conceded to be admissions of prior misconduct, had "no relation to the veracity of (his) testimony" and thus should not have been admitted against him during trial. He further contends that "(u)nder . . . state law, the trial judge has no discretion to allow testimony of misconduct not indicating a lack of veracity, even if the testimony should relate to some other aspect of the crime charged."

At the time of the offer of the testimony of Badolato and Officer Newman, who had overheard the conversation, the defendant had not testified; nor was there any representation that he would testify at the conclusion of the state's case. Hence, his credibility was not then in issue and testimony of his admissions was not offered for that purpose. The state explained it was making the offer to show that the defendant was the type of person who might well be in possession of an illegal drug for the purpose of a sale; and to satisfy the state's burden to prove possession and intent concerning the crime charged. Although evidence of prior acts of misconduct is not, as the state claims, admissible to prove the bad character of the accused or his tendency to commit criminal acts; State v. Hauck, 172 Conn. 140, 143-44, 374 A.2d 150; State v. Brown, 169 Conn. 692, 700-702, 364 A.2d 186; 1 Wigmore, Evidence (3d Ed.) §§ 215-218; such evidence is admissible for a variety of purposes, including that which tends to prove or establish such things as intent, an element in the crime, identity, malice, motive, or a system of criminal activity. Spencer v. Texas, 385 U.S. 554, 560-61, 87 S.Ct. 648, 651-52, 17 L.Ed.2d 606; State v. Hauck, supra; see 1 Wigmore, op. cit.; McCormick, Evidence (2d Ed.) § 190. Evidence otherwise relevant and material which tends to link an accused with other misconduct, but is used to prove a variety of things, including intent, motive or a system of criminal activity, is not rendered inadmissible if the trial judge determines in the exercise of judicial discretion that its probative value outweighs its prejudicial tendency. State v. Peary, 176 Conn. 170, 174, 405 A.2d 626; State v. Brown, supra, 169 Conn. 701, 364 A.2d 186. "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709. Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62; 1 Wharton, Criminal Evidence (13th Ed.) § 241." State v. Brown, supra, 169 Conn. 702, 364 A.2d 112. On the state of the evidence before it, we cannot say that the court abused its discretion in allowing the testimony.

The defendant makes no claim that the testimony of the officers as to his verbal admission was inadmissible because of a failure of the officers to advise him of his constitutional rights. See Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694. There is no claim that the defendant was under interrogation at the time; rather, it appears that Barlow volunteered the statements as to his previous dealing in drugs over a period of years and that it was an easy way to make money. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by . . . (this decision)." Miranda v. Arizona, supra, at 478, 86 S.Ct. at 1630; State v. Bennett, 171 Conn. 47, 52-53, 368 A.2d 184; State v. Cobb, 159 Conn. 31, 34, 266 A.2d 393; United States v. Martin, 511 F.2d 148, 151 (8th Cir.); United States v. Sanchez, 449 F.2d 204, 209 (5th Cir.); see Fisher v. United States, 425 U.S. 391, 400, 96 S.Ct. 1569, 48 L.Ed.2d 39; cf. State v. Moscone, 171 Conn. 500, 511, 370 A.2d 1030. The court correctly ruled that the evidence was admissible at trial.

The other issue which the defendant raises and pursues in this appeal is that the trial court erred in excluding testimony by Lisa Ogden directly quoting statements allegedly made to her by Chris Falk, the defendant's former girl friend, whose whereabouts are unknown. Lisa...