State v. Brown

• Citation: 301 A.2d 547,163 Conn. 52
• Court: Supreme Court of Connecticut
• Decision Date: 03 May 1972
• Parties: STATE of Connecticut v. Sylvester BROWN.

Page 547

301 A.2d 547

163 Conn. 52

STATE of Connecticut v. Sylvester BROWN.

Supreme Court of Connecticut.

May 3, 1972.

John R. Williams, New Haven, for appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom, on the brief, were Arnold Markle, State's Atty., and John J. Kelly, Asst. State's Atty., for appellee (state).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, JJ.

LOISELLE, Associate Justice.

The defendant Sylvester Brown was convicted in a jury trial of a sale of narcotics in violation of § 19-480(a) of the General Statutes. The defendant's motion to set aside the verdict was denied by the trial court and from the judgment rendered thereon he has appealed.

The defendant's assignments of error relate to attacks on the finding, on the admission of evidence and on the charge to the jury. In order to consider these claims, a summary of the offers of proof presented by the state and by the defendant is necessary.

The state's offers of proof include the following: On January 20, 1970, Detective Francis R. DeGrand of the New Haven police department was engaged in an undercover operation with Officers Frank Hawley and James Lucas. On that day, Officer Hawley drove Detective DeGrand, in a Volkswagen truck equipped with one-way glass windows, to a store on Congress Avenue in the city of New Haven. Officer Hawley went into the store and spoke with Officer Lucas, while Detective DeGrand remained in the rear of the truck where, approximately six feet away from Hawley and the defendant, he was making observations through the one-way glass window on the side of the truck. Officer Hawley then went out to the sidewalk in front of the store, where Detective DeGrand observed the defendant speaking to Officer Hawley, handing him something, and receiving money from him. Officer Hawley then walked over to the Volkswagen truck and turned over two bundles of glassine bags to Detective DeGrand. Detective DeGrand put the bags into a police evidence envelope which he closed with clips. He then marked and signed it. He gave that envelope to his superior, Lieutenant John M. Maher, who locked it in his desk. Lieutenant Maher kept his desk locked and had the only key to it. The following day Detective DeGrand took the envelope from Lieutenant Maher and delivered it to the office of Abraham Stolman at the state toxicological laboratory and obtained a receipt for it from Stolman's secretary. A few hours later, Stolman marked the envelope with an identification number and locked it in a cabinet where it remained for several months until it was tested. Stolman's report indicated that samples taken from the bags contained heroin. Following the tests, Stolman sealed the envelope. The envelope was not reopened until the time of the trial.

The defendant's offers of proof which are relevant to his claims of error are the following: Detective DeGrand did not see anything pass from the defendant to Officer Hawley and the defendant did not sell heroin to Officer Hawley. The evidence envelope in which Detective DeGrand put the thirty glassine bags was never sealed until after their contents were tested. The envelope was kept in a cabinet, at the state toxicological laboratory, in which narcotics from various sources were kept and to which three people had access.

The defendant claims that the trial court erred in the following respects: (1) In finding facts which are unsupported by the evidence; (2) in admitting in evidence thirty glassine bags and testimony as to their contents; (3) in refusing a request to charge on the state's failure to call certain witnesses; (4) in refusing the defendant's request for an instruction that possession of heroin is a lesser offense than, and included in, the offense of the sale of heroin; and (5) in refusing to charge that the state had the burden of showing the defendant's lack of a license to sell drugs. The remaining assignments were not briefed and are considered abandoned. Holt-Lock, Inc. v. Zoning & Planning Commission, 161 Conn. 182, 184, 286 A.2d 299; Martin v. Kavanewsky, 157 Conn. 514, 516, 255 A.2d 619.

The defendant's first claim is that certain of the court's findings, as specified in his assignments of error, are unsupported by the evidence. That claim is tested by reference to the evidence printed in the appendices to the briefs. Practice Book §§ 627, 718; see Grodzicki v. Grodzicki, 154 Conn. 456, 460, 226 A.2d 656; State v. Vars, 154 Conn. 255, 258, 224 A.2d 744. The defendant attacks the court's finding that the state offered evidence to prove the date on which the contents of the thirty bags were removed from a locked cabinet in the state toxicological laboratory for testing. The attack is without merit. In fact, the evidence offered by the defendant confirms the state's offer of proof. The defendant also attacks two points in the court's narratives of the evidence on which evidentiary rulings were made. See Practice Book § 648. These attacked items are of no significance to the rulings. Assuming, arguendo, that it would be appropriate to strike these items of the narrative, the evidentiary rulings would not be affected. See Fairbanks v. State, 143 Conn. 653, 655, 124 A.2d 893; Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 543, 116 A.2d 167.

The state offered in evidence thirty bags of white powder and the testimony of the chief state toxicologist that the white powder contained heroin. The defendant claims, in substance, by a number of his assignments of error, that the court erred in admitting this evidence because the state did not establish that the bags were the same begs which Officer Hawley gave to Detective DeGrand. The defendant argues that a break in the 'chain of custody' occurred while the bags were (1) in Lieutenant Maher's desk; (2) with Stolman's secretary; and (3) in Stolman's locked cabinet for several months, where they were available to persons who did not testify. We recently had occasion to consider claims of the same character as those raised by the defendant. In State v. Johnson, 162 Conn. 215, 232, 292 A.2d 903; the defendant objected to the admission in evidence of marijuana. There, as here, the gravamen of the defendant's position was that not all individuals having access to the offered evidence were called as witnesses and that there was a possibility that someone may have tampered with it. What we said in the Johnson case is applicable here: 'There is no hard and fast rule that the prosecution must exclude or disprove all possibility that the article or substance has been tampered with; in each case the trial court must satisfy itself in reasonable probability that the substance had not been changed in important respects. United States v. S. B. Penick & Co., . . . (136 F.2d 413, 415 (2d Cir.)). The trial court must also decide under the same test of reasonable probability whether the identification and nature of contents is sufficient to warrant is reception in evidence. United States v. Clark, . . . (425 F.2d 827, 833 (3d Cir.)); Gallego v. United States, . . . (276 F.2d 914, 917 (9th Cir.)); United States v. S. B. Penick & Co., supra. The court must consider the nature of the article, the circumstances surrounding its preservation and custody and the likelihood of intermeddlers tampering with it in making its determination; and there is no rule which requires the state to produce as witnesses all persons who were in a position to come into contact with the substance sought to be introduced in evidence. Gallego v. United States, supra. The ruling of the trial judge may not be overturned except for a clear abuse of discretion. United States v. Von Roeder, 435 F.2d 1004, 1008 (10th Cir.); United States v. Clark, supra; Gallego v. United States, supra. In the case at bar there was no affirmative showing that the . . . glassine bags . . . were tampered with, or that there was insufficient proof as to the identification and nature of the contents of the . . . bags that were seized, so that it cannot be said that the trial judge clearly abused his discretion in admitting the . . . bags in evidence. See United States v. Von Roeder, supra.' The court was not in error in admitting the thirty bags of heroin, or testimony about them, in evidence.

The defendant requested an instruction to the jury that a party's failure to call an available material witness permits an inference that the witness' testimony would be harmful to that party. In the defendant's view, Officer Lucas, Lieutenant Maher, Stolman's secretary and another employee at the state toxicological laboratory, who had access to the cabinet in which the thirty bags were kept, were such material witnesses. It is not every available material witness who may be the basis of the inference, but only those 'whom the party would naturally produce.' Queen v. Gagliola, 162 Conn. 164, 168, 292 A.2d 890, 892. 'A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce.' Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598, 600. That materiality and naturalness of production are not the same is apparent. McCormick, Evidence §§ 152, 249; 2 Wigmore, Evidence (3d Ed.) §§ 285-290. One would not be expected to produce a witness who could add nothing that had not already been reasonably shown, even though merely repetitious testimony could be material. Such evidence could hardly be considered 'peculiar or superior.' 2 Wigmore, op. cit. § 287. Moreover, the claims of proof in the finding do not support a conclusion that the trial court erroneously refused to charge on the inference. Practice Book § 635; Begley v. Kohl & Madden Printing Ink Co., 157 Conn. 445, 451, 254 A.2d 907. 'The party claiming the...