State v. Bowens

• Decision Date: 25 July 1991
• Docket Number: No. 8912,8912
• Citation: 591 A.2d 433,24 Conn.App. 642
• Parties: STATE of Connecticut v. Allen BOWENS.
• Court: Connecticut Court of Appeals

Page 433

591 A.2d 433

24 Conn.App. 642

STATE of Connecticut v. Allen BOWENS.

No. 8912.

Appellate Court of Connecticut.

Argued March 18, 1991.

Decided May 21, 1991.

Certification Denied July 25, 1991.

Neal Cone, Deputy Asst. Public Defender, with whom were Kent Drager, Asst. Public Defender, and, on the brief, G. Douglas Nash, Public Defender, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Jr., Asst. State's Atty., and Donald A. Browne, State's Atty., for appellee (state).

Before DUPONT, C.J., and DALY and HEIMAN, JJ.

DALY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the sale of narcotics and possession of narcotics with intent to sell by a person who is not drug-dependent, both in violation of General Statutes § 21a-278(b). The defendant claims that the trial court (1) incorrectly denied his motion for acquittal based upon insufficiency of the evidence, (2) improperly allowed the state's attorney to comment on the defendant's refusal to testify, (3) improperly charged the jury on the defendant's unexplained flight, (4) incorrectly instructed the jury as to reasonable doubt, and (5) improperly permitted the state's attorney to mislead the jury in closing arguments on the meaning of proof beyond a reasonable doubt. ¹ We disagree and affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On May 6, 1988, at about 10:30 p.m. Sargeant Richard Herlihy of the Bridgeport police department was parked in an unmarked car watching a well lit area in and around building nineteen in the P.T. Barnum housing project located in Bridgeport. Herlihy's unobstructed observation point was about 100 feet from building nineteen. On that night, Herlihy watched three black males outside the hallway at the eastern portion of building nineteen; one was the defendant and the other two were the Reddick brothers, whom Herlihy recognized as reputed drug dealers. All three lived in that building. The defendant was standing near the entrance to the hallway and the Reddick brothers stood between fifteen and twenty feet away from him. Herlihy observed a successive pattern in which seven persons approached the defendant on foot, and entered the hallway with him for two or three minutes before exiting and leaving. Subsequently, a Ford LTD with two occupants came into the area, stopped, and the driver, a white male, entered the hallway with the defendant. Two to three minutes later, the driver emerged, went back to his car and drove off. Herlihy radioed other police units to stop the Ford LTD, and called for backup assistance to arrest the defendant.

Officer George Vivo received Herlihy's radio call at about 10:30 p.m. and thereafter stopped the Ford LTD. The driver and a white female passenger were identified respectively as Peter Elevecky and Monica Ivan. Elevecky admitted that he had been at the P.T. Barnum housing project, had exited his car and purchased heroin with a $20 dollar bill from a black man, but could not identify the seller. Elevecky had earlier that day taken heroin and cocaine before later making the purchase at P.T. Barnum. Ivan testified that she had gone to P.T. Barnum with Elevecky, and that he had exited the car and returned with heroin in his possession. When Vivo stopped the pair, Ivan took a packet of drugs off the car seat and attempted to eat them, but coughed them out. This packet was later tested and was found to contain heroin. Vivo testified that it was similar in size to the twenty-nine packets of drugs later seen dropped by the defendant as he fled.

Officer Peter Gelozin responded to Herlihy's radio call to pursue the defendant. Gelozin was told to look for a black male wearing a blue and white jacket and blue pants at building nineteen. When Gelozin arrived in an unmarked car, he spotted the defendant, who fit Herlihy's description. Gelozin left his car and quickly walked toward the defendant. Gelozin was dressed in his black police tactical uniform with police department emblems and his badge on the front, and was wearing his holster and gun. The defendant turned and fled into the hallway of building nineteen with Gelozin in pursuit yelling "police." Gelozin chased the defendant up three flights of stairs and saw him drop a brown paper bag from his right hand just before entering apartment 305. Gelozin entered the apartment and arrested the defendant, afterward retrieving the brown paper bag the defendant had dropped. In the brown paper bag, Gelozin found twenty-nine small glassine envelopes marked with the words "power" and "obsession" and containing a white powder substance, later identified as heroin. Each packet was deemed to have a street value of $20. At the police station, $103 was seized from the defendant, consisting of four $20 bills, two $10 bills and three $1 bills.

I

The defendant first claims that the evidence adduced at his trial was insufficient to sustain his conviction on the charge of sale of narcotics by a person who is not drug-dependent, and that this improper conviction tainted the jury's verdict on the charge of possession with intent to sell narcotics by a person who is not drug-dependent. The defendant concludes, therefore, that the trial court should have granted his motion for acquittal. We disagree.

This court undertakes a two-part analysis when reviewing claims of insufficient evidence. First, we review the trial evidence, construing it in the most favorable manner reasonably possible to support the jury's verdict. Second, we ascertain whether any jury could reasonably have concluded that the cumulative effect of the established evidence, and the inferences reasonably drawn from those evidentiary facts, established guilt beyond a reasonable doubt. State v. King, 216 Conn. 585, 600-601, 583 A.2d 896 (1990); State v. Turner, 24 Conn.App. 264, 587 A.2d 1050 (1991). "Where a group of facts are relied upon for proof of an element of the crime it is their cumulative impact that is to be weighed in deciding whether the standard of proof beyond a reasonable doubt has been met and each individual fact need not be proved in accordance with that standard. It is only where a single fact is essential to proof of an element, however, such as identification by means of fingerprint evidence, that such evidence must support the inference of that fact beyond a reasonable doubt." State v. McDonough, 205 Conn. 352, 355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1079, 99 L.Ed.2d 238 (1988). Thus, each essential element of the crime must still be proven beyond a reasonable doubt; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); State v. King, supra, 216 Conn. at 601, 583 A.2d 896; and a jury may not speculate or resort to conjecture but may draw only reasonable, logical inferences from the proven facts. State v. King, supra.

The defendant was charged in the first count with sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). ² In his claim, the defendant argues that the state failed to prove that the defendant sold narcotics to Elevecky because there was no evidence presented from which a jury could reasonably infer that Elevecky bought the narcotics in his possession from the defendant that night. Essentially, the defendant's claim is that the state failed to prove the identity of the seller, and therefore did not prove the essential element of delivery to establish a sale. ³ State v. Jackson, 13 Conn.App. 288, 294, 535 A.2d 1327 (1988). In order to convict the defendant, the state had to prove beyond a reasonable doubt that a sale occurred, that it was the defendant who delivered to Elevecky the heroin that Elevecky bought that night at the P.T. Barnum housing project and not some other black male who might have been dealing drugs within the project.

Herlihy testified as an expert police witness in drug enforcement that the pattern of the defendant's behavior observed that night led him to the opinion that the defendant was engaging in the sale of drugs. Although Herlihy did not observe an actual sale because of the defendant's use of a darkened hallway in building nineteen, the circumstances he observed that night clearly supported his opinion of a sale, by logical inference. The defendant was with two other known drug dealers, he met quickly with a succession of people for two to three minute periods in the darkened hallway, after which the individuals quickly left the scene on foot. Finally, the defendant fled when approached by a uniformed policeman who subsequently saw the defendant discard a paper bag which held twenty-nine glassine envelopes of heroin. Thus, there was ample evidence to support Herlihy's expert opinion that the defendant was selling drugs that night, an opinion that the jury could use in reaching its verdict. See State v. Holder, 18 Conn.App. 184, 190, 557 A.2d 553 (1989); State v. Holeman, 18 Conn.App. 175, 177-81, 556 A.2d 1052 (1989) (a companion case to Holder ).

Herlihy further testified that, during his forty-five minutes of watching the defendant, he witnessed eight transactions, the first seven by persons on foot and the eighth by a white male driving a Ford LTD, with a passenger in the front seat. Herlihy observed this male exit the Ford LTD, enter the hallway with the defendant and leave after two or three minutes as the other seven people had done. Ivan testified that Elevecky returned to the car with heroin. After Herlihy saw the white male return to the car and drive away, he broadcasted to other police units to stop the car.

Herlihy testified that it was about 10:30 p.m. at night when these events occurred. Vivo, who had stopped Elevecky and Ivan, also testified that it was about 10:30 p.m. Elevecky and Ivan both testified that Elevecky had bought a $20 packet of heroin from...