State v. Bradley

• Decision Date: 31 October 2000
• Citation: 60 Conn. App. 534,760 A.2d 520
• Court: Connecticut Court of Appeals
• Parties: (Conn.App. 2000) STATE OF CONNECTICUT V. CALVIN BRADLEY AC 19551

760 A.2d 520 (Conn.App. 2000)

STATE OF CONNECTICUT

V.

CALVIN BRADLEY

AC 19551

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued June 2, 2000

October 31, 2000

Erik Bartlett, certified legal intern, with whom were Richard Lord, certified legal intern, and, on the brief, Pamela S. Nagy, assistant public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Eugene Calistro, assistant state's attorney, for the appellee (state).

Foti, Zarella and Pellegrino, Js.

Foti, J.

OPINION

The defendant, Calvin Bradley, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes §§ 21a-278 (b), possession of narcotics with intent to sell in violation of General Statutes §§ 21a-277 (a), possession of narcotics with intent to sell within 1500 feet of an elementary school in violation of General Statutes §§ 21a-278a (b), interfering with an officer in violation of General Statutes §§ 53a-167a and criminal impersonation in violation of General Statutes (Rev. to 1997) §§ 53a-130, as amended by Public Acts 1997, No. 97-123, §§ 3. The defendant was sentenced to a total effective term of twenty years, suspended after ten years, followed by five years of probation.¹

On appeal, the defendant claims that the evidence was insufficient to sustain his conviction for criminal impersonation and for possession of narcotics and possession with intent to sell. The defendant also claims that the court improperly (1) allowed the jury to find that he had failed to prove drug dependency, (2) allowed him to be convicted and sentenced under both §§ 21a-277 (a) and §§ 21a-278 (b) in violation of his double jeopardy rights, (3) allowed expert testimony and (4) instructed the jury. We reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On March 26, 1998, at approximately 10 p.m., members of the New Haven police department narcotics unit were about to execute a search and seizure warrant on the first floor at 191 Pine Street in New Haven. Prior to this action and as part of the investigation, Officer Albert Ferraro, who was undercover, attempted to purchase narcotics from the first floor kitchen window at this address. He knocked on the center window that was covered with plywood bearing a hole cut in the lower left portion. The defendant responded, asking, "How many?" Ferraro said, "One," and began to hand the defendant $10 through the window. As the defendant reached for the money, he stopped abruptly. As the two men looked at each other, the defendant said, "You are a cop, go over to Fillmore Street."

Ferraro then returned to the police van and, accompanied by other officers, proceeded to execute the search and seizure warrant. Entry was gained through the exterior door of 191 Pine Street, using a two man battering ram, which was brought because the police had received information that the door to the apartment probably would be barricaded or fortified.

Before entry was actually gained, the defendant was heard to say, "Okay, okay, wait a minute, I will open the door." The police stopped ramming the door for ten to fifteen seconds, but when it did not open they resumed their efforts. The defendant then opened the door and, despite police orders to get to the ground, he refused and struggled, resisting the officers' efforts to secure him. The defendant was alone in the apartment when the search warrant was executed, and no one had left or entered up to the time of entry.

The defendant stated that he had been at the apartment since sundown, a few hours earlier. After securing the defendant, the police raid team cleared the apartment room by room to ensure that no other persons were present. The apartment had four rooms, and had no furnishings except for an empty dresser, a mattress and a few other pieces of furniture; it appeared that no one resided there. The only viable exit from the apartment was the front door. The rear door was sealed with plywood and bolts, and the windows were covered with either plywood or steel brackets and wood and metal poles. A search of the defendant's person revealed $348 as well as a set of keys, one of which unlocked the dead bolt on the barricaded front door.

During the search, the police found five red tinted packets of freebase cocaine in plain view in the kitchen atop a portable stereo just across from the window where Ferraro had attempted the buy. Twenty similar packets of freebase cocaine were found on the toilet tank lid in the bathroom, and eighty-one similar packets of cocaine were found concealed under a dresser in the front room. The eighty-one packets were packaged in a large plastic bag containing three smaller bags, which held twenty-seven packets each. Alongside the drugs under the dresser was found money amounting to $435 and a Bridgeport welfare identification card bearing the photograph of the defendant and the name Kaseem Matts. The evidence was photographed before it was moved. Police also seized an operational walkie-talkie from the front room of the apartment.

The defendant identified himself as Kaseem Matts, but denied that the drugs and the identification found under the dresser belonged to him. Several days later, his true identity was disclosed.

The apartment at 191 Pine Street was described as a "drug house," where three prior search and seizure warrants had been executed; the defendant conceded that the apartment is a drug house. Sergeant Brian Norwood, who was qualified as an expert in the field of narcotics investigations and, specifically, the customary practice of narcotics dealers, testified that under a hypothetical scenario in which a person is in a barricaded premises with 100 packets of cocaine, a walkie-talkie and $300 on his person, sale rather than personal use is more likely indicated. He also gave his opinion as to the ways in which crack cocaine could be packaged for street level sales.

I.

The defendant first claims that the evidence presented by the state was insufficient as a matter of law to sustain his conviction for criminal impersonation pursuant to §§ 53a-130 (a).² The state concedes, and we agree, that the statute prohibits impersonating "another" and does not prohibit merely giving a false name. State v. Jackson, 32 Conn. App. 724, 728, 630 A.2d 164, cert. denied, 228 Conn. 903, 634 A.2d 297 (1993). Because the state failed to prove at trial that the defendant intended to impersonate or actually did impersonate a real person named Kaseem Matts, the evidence was insufficient to sustain his conviction under §§ 53a-130 (a). See State v. Smith, 194 Conn. 213, 220-22, 479 A.2d 814 (1984). We therefore reverse the judgment of conviction of criminal impersonation and direct the trial court on remand to render a judgment of acquittal on that count.

II.

The defendant next argues that his conviction on counts one, two and three must be set aside because the state failed to prove that he was in constructive possession of the cocaine at the time of his arrest. We disagree.

"The standards by which we review claims of insufficient evidence are well established. When reviewing a sufficiency of the evidence claim, our courts apply a two-prong 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 jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....

"It is within the province of the jury to draw reasonable and logical inferences from the facts proven.... The jury may draw reasonable inferences based on other inferences drawn from the evidence presented.... Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable.... We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence.... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.... [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence... established guilt beyond a reasonable doubt.... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... In doing so, we keep in mind that [w]e have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility....

"Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt... nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal.... 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.... Furthermore, [t]his court cannot substitute its own judgment...