State v. Brown, No. 17533.
| Decision Date | 15 August 2006 |
| Docket Number | No. 17534.,No. 17533. |
| Citation | 903 A.2d 169,279 Conn. 493 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Brian BROWN. Brian Brown v. Commissioner of Correction. |
Christopher M. Neary, deputy assistant public defender, for the appellant (defendant in the first case, petitioner in the second case).
James A. Killen, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva Lenczewski, supervisory assistant state's attorney, for the appellee (state in the first case, respondent in the second case).
SULLIVAN, C.J., and BORDEN, KATZ, VERTEFEUILLE and ZARELLA, Js.*
In this consolidated appeal, the defendant and petitioner, Brian Brown,1 appeals from the judgment of conviction, rendered after a jury trial, of one count each of the crimes of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278(a), and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b). The defendant also appeals from the judgment of the habeas court denying in part his amended petition for a writ of habeas corpus. On appeal, the defendant maintains the following claims: (1) the trial court violated his constitutional right to counsel by improperly requiring the defendant to proceed with the probable cause hearing without counsel or an adequate waiver of the right to counsel; (2) the trial court improperly admitted evidence unconstitutionally obtained during a search and seizure for which the state lacked probable cause or a warrant, made consequent to a stop for which the police lacked a reasonable and articulable suspicion; and (3) the habeas court improperly denied his claim that his trial attorney's failure to take certain actions resulted in ineffective assistance of counsel, in violation of his constitutional rights. We affirm the judgments of the trial and habeas courts.
The jury reasonably could have found the following facts. On June 7, 1994, Waterbury police officer Michael DiMaria received an anonymous telephone call informing him that the defendant was selling narcotics in the area of Walnut and Wood Streets in Waterbury. DiMaria and five other officers then drove to that area in two unmarked vehicles to investigate the report. The area to which they proceeded is a high crime area known for heavy narcotics activity. The vehicle that DiMaria was driving, with two other officers as passengers, generally was recognized in the neighborhood as a police vehicle.
DiMaria drove past a small store on Walnut Street, in front of which stood a group of people that included the defendant. As the police vehicle drove past, the people in the group started moving away in different directions. DiMaria testified that such behavior was typical of people carrying narcotics. The defendant separated from the group, walked down Walnut Street and turned onto Wood Street. DiMaria drove through the neighborhood, out of sight of the defendant, to Wood Street, where he parked his vehicle facing the direction in which the defendant was walking. He and the other officers in the vehicle watched the defendant walk down Wood Street toward the defendant's residence, which was nearby. While the defendant was walking down Wood Street, DiMaria saw him look back over his shoulder repeatedly. DiMaria finally saw the defendant stop walking, reach into his pants pocket, remove a plastic bag and place the plastic bag in his left shoe. DiMaria, who had been with the Waterbury police department for fifteen years and on the narcotics team for five years, had seen such plastic bags many times in the past and recognized them as the type used in the packaging of narcotics.
After seeing the defendant place the bag in his shoe, DiMaria drove the vehicle over to where the defendant was located, and he and the other officers left the vehicle to confront the defendant. DiMaria asked the defendant what he had placed in his shoe. After the defendant denied having placed anything in his shoe, DiMaria instructed the defendant to remove his shoe. When the defendant removed the shoe, the plastic bag fell from the shoe onto the ground. The defendant stepped on the bag, covering it with his foot. DiMaria pushed the defendant backward to force him to move his foot and seized the bag, which contained thirty-two smaller plastic bags, each containing a substance later established to be cocaine. This number of smaller bags of narcotics is inconsistent with possession for personal use. A postarrest search revealed that the defendant also possessed $112 in small denomination bills, which was consistent with selling narcotics. The area in which the officers observed and arrested the defendant was within 1500 feet of a school.
The following procedural history also is necessary for our resolution of this appeal. The defendant was charged, in an amended information dated October 26, 1995, with one count of possession of a narcotic substance with the intent to sell in violation of § 21a-278(a) and one count of possession of a narcotic substance with the intent to sell within 1500 feet of a school in violation of § 21a-278a(b). On August 1, 1994, the trial court, Kulawicz, J., conducted a probable cause hearing, at which the defendant was not represented by counsel, that resulted in the court's finding of probable cause. A subsequent jury trial resulted in a guilty verdict on both counts, and the trial court, Flynn, J., thereafter rendered judgment in accordance with the jury verdict, sentencing the defendant to a total effective term of ten years imprisonment. The defendant did not appeal from the judgment of conviction. He subsequently filed a petition for a writ of habeas corpus, in response to which the habeas court, Hon. Ronald J. Fracasse, judge trial referee, reinstated his right to appeal the judgment of conviction, but denied the remainder of the relief requested in the petition. The habeas court also granted the defendant's petition for certification to appeal the habeas court's judgment. The defendant thereafter filed two appeals in the Appellate Court challenging separately the judgment of conviction and the judgment of the habeas court. The Appellate Court granted the defendant's motion to consolidate the appeals and we transferred the consolidated appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
We consider first the defendant's claim that the judgment of conviction should be reversed because it resulted from an illegal probable cause hearing. Specifically, the defendant claims that his constitutional right to counsel was violated because he was not represented by counsel during the probable cause hearing and he had not waived his right to counsel. The defendant concedes that he failed to raise a challenge to the probable cause hearing at trial and, therefore, seeks to prevail on his claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).2
The state3 concedes that the trial court improperly conducted the probable cause hearing without either counsel for the defendant or a valid waiver by the defendant of his right to counsel. Nevertheless, the state contends that this impropriety does not require reversal of the conviction because it was rendered harmless by the subsequent conviction of the defendant after a fair trial. We agree with the state.
The following additional undisputed facts are relevant to our resolution of this issue. On August 1, 1994, the defendant appeared before the trial court for a previously scheduled probable cause hearing. The defendant was not represented by counsel. At the court's instruction, the defendant telephoned Mark Kostecki, an attorney who had represented the defendant on another matter, in an unsuccessful attempt to arrange for representation at that day's hearing. The clerk informed the court that "[t]he sixty days expires on Friday," an apparent reference to the statutory requirement that a probable cause hearing be held within sixty days of the filing of the complaint or information, "[u]nless waived by the accused person or extended by the court for good cause shown . . . ." General Statutes § 54-46a(b). Consequently, the trial court told the defendant that When the defendant informed the court that he had been unable to arrange for representation that day, the court responded, The defendant replied, "I'll go forward." The prosecution then proceeded to examine its only witness at the probable cause hearing, Officer DiMaria, after which the trial court made a finding of probable cause.
In State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, this court concluded that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.)
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