State v. Bruno

• Decision Date: 18 August 2009
• Docket Number: No. 18252.,No. 18251.,18251.,18252.
• Citation: 293 Conn. 127,975 A.2d 1253
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Alberto BRUNO.

975 A.2d 1253

293 Conn. 127

STATE of Connecticut v. Alberto BRUNO.

No. 18251.

No. 18252.

Supreme Court of Connecticut.

Argued February 19, 2009.

Decided August 18, 2009.

Richard C. Marquette, special public defender, for the appellant-appellee (defendant).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Richard L. Palombo, Jr., assistant state's attorney, for the appellee-appellant (state).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

PALMER, J.

The defendant, Alberto Bruno, was convicted,¹ after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b),² sale of a narcotic substance by a person who is not drug-dependent, in violation of § 21a-278 (b), possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b),³ and conspiracy to sell a narcotic substance by a person who is not drug-dependent, in violation of General Statutes §§ 21a-278(b) and 53a-48.⁴ Thereafter, following a trial to the court on part B of the two part information, in which the state charged the defendant with being a "[p]ersistent [d]rug [o]ffender" in violation of § 21a-278, the court found that the state had failed to meet its burden of proving that the defendant was guilty of that charge. Specifically, the court found, sua sponte, that the state improperly had charged the defendant with being a persistent felony offender under General Statutes § 53a-40 rather than charging him with being a subsequent drug offender under § 21a-278(b), and that § 53a-40 does not apply to drug offenses. After the trial court rendered judgment in accordance with the jury verdict on the first part of the information, the defendant appealed⁵ on the ground that the evidence was insufficient to support his conviction. The state appealed⁶ from that part of the judgment dismissing part B of the information, claiming that the trial court improperly had concluded that the state had charged the defendant under § 53a-40 and not under § 21a-278(b). With respect to the defendant's appeal, we reject his claim of evidentiary insufficiency and, therefore, affirm the judgment with respect to the offenses of which the defendant was convicted. With respect to the state's appeal, we conclude that the trial court improperly determined that part B of the information charged the defendant under § 53a-40 rather than under § 21a-278. Accordingly, we reverse the judgment pertaining to part B of the information and remand the case for a new trial on that part of the information.

The jury reasonably could have found the following facts. On the morning of April 12, 2005, the tactical narcotics team of the Bridgeport police department set up a surveillance operation in the parking area of an apartment building located at 25 Sanford Place in Bridgeport. This location is approximately 760 feet from Kolbe Cathedral High School. At about 11:30 a.m., Officer Gregory Iamartino, a member of the surveillance team, observed the defendant moving furniture out of the building with Jose Albino. He also observed Duane Merritt, an acquaintance of the defendant, arrive in the area. As the defendant and Albino emerged from the apartment building, another unidentified male arrived and spoke first with Merritt and then with the defendant. The unidentified male handed cash to the defendant, who took a set of keys that had been hanging from his neck, opened the trunk of a Ford Taurus, removed several blue "folds"⁷ containing heroin and gave three of them to Albino. Albino gave two of the folds to the unidentified male and put one in his pocket. At that point, Pedro Gonzalez arrived and, shortly thereafter, left the area with Merritt.

William Simpson, an undercover officer with the Bridgeport police department, had been directed to purchase drugs as part of the surveillance operation. During the operation, he wore a listening device. About five minutes after the sale of the heroin to the unidentified male, Simpson arrived at the parking lot. No one was in the parking lot at the time, so Simpson entered the apartment building. Shortly thereafter, Simpson emerged from the building with the defendant and asked the defendant to sell him "two baggies" of heroin. The defendant responded that he "didn't have any" heroin and asked Simpson to leave.

At that point, Merritt returned to the parking lot. The defendant told Merritt that Simpson wanted to buy drugs but that he thought that Simpson was a police officer. The defendant asked Merritt to "check the guy out," and Merritt agreed. The defendant then directed Simpson to go into the apartment building, which he did. At that point, the defendant went to the Ford Taurus, opened the trunk and removed two blue folds containing heroin. The defendant then gave them to Merritt, who wrapped them in a piece of aluminum foil that he had found on the ground. Merritt then entered the apartment building to talk with Simpson. Believing that Simpson might be wearing a listening device, Merritt patted down Simpson's chest. Simpson resisted, but Merritt was able to discover the listening device. Merritt then told Simpson that he was a "snitch" and made a cut throat gesture to Albino and Gonzalez.⁸ Fearing for his life, Simpson pushed Merritt back through the door and into the parking lot. Meanwhile, Douglas Stolze, a lieutenant with the Bridgeport police department who had been monitoring Simpson's listening device, ordered other police officers who were participating in the operation to go to the apartment building. When Merritt saw the police officers, he threw away the package containing the heroin. Iamartino observed Merritt's action and retrieved the package. After officers detained the defendant, Iamartino took the defendant's keys, opened the trunk of the Taurus and found a black boot in which there were a number of small bags containing what appeared to be narcotics.

Rafal Mielguj, an analyst with the state toxicological laboratory, testified that the boot contained thirty-one small ziplock bags and glassine bags, that the substance in the ziplock bags had tested positive for crack cocaine and that the substance in the glassine bags had tested positive for heroin. Tests also had shown that the substance in the package thrown by Merritt was heroin.

The defendant was arrested and charged in part A of the information with possession of a narcotic substance with intent to sell by a person who is not drug-dependent, sale of a narcotic substance by a person who is not drug-dependent,⁹ possession of a narcotic substance with intent to sell within 1500 feet of a school, and conspiracy to sell a narcotic substance by a person who is not drug-dependent. In part B of the information, the state charged the defendant with being a "[p]ersistent [d]rug [o]ffender" under § 21a-278.¹⁰ After a jury trial on part A of the information, the jury found the defendant guilty on all counts. Immediately thereafter, the defendant elected to have a court trial on part B of the information. At that time, the assistant state's attorney (prosecutor) stated that the state was "prepared to go forward on the part B information raising [the defendant's] exposure from the minimum five [years] to the minimum ten [years] on the [§ 21a-278(b)] counts." The prosecutor presented evidence at the trial that the defendant previously had been convicted of violating § 21a-278(b). During closing argument, the prosecutor stated that, on the basis of "the conviction [in the present case] and the conviction from the past, the defendant would be considered a second offender ... under [§] 21a-278(b)...." At the conclusion of the trial on part B of the information, the court stated that it would defer its ruling until sentencing.

At the sentencing hearing, the trial court indicated that it had concluded that the "persistent offender statute of title 53a of the General Statutes" did not apply to convictions under § 21a-278.¹¹ The trial court reached this conclusion on its own initiative, without the filing of any motions or briefs, or any other input, by the parties. Accordingly, the trial court stated that the defendant was "not guilty" of the charge in part B of the information. These appeals followed.

I

We first address the defendant's appeal. The defendant claims that there was insufficient evidence to support his conviction of the narcotics and conspiracy charges in part A of the information. Specifically, the defendant claims that there was insufficient evidence for the jury to find beyond a reasonable doubt that he possessed narcotics with intent to sell or that he actually engaged in the sale of narcotics. We disagree.

"In reviewing a sufficiency of the evidence claim, we apply a two-part 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....

"[A]s 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 trier, 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." (Internal quotation marks omitted.) State v. John F.M., 285 Conn. 528, 544 n. 15, 940 A.2d 755 (2008).

"To prove its case [of a violation of § 21a-278(b)], the state must...