State v. Bush

• Decision Date: 07 April 2015
• Docket Number: No. 34886.,34886.
• Citation: 156 Conn.App. 256,112 A.3d 834
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard BUSH.

156 Conn.App. 256

112 A.3d 834

STATE of Connecticut

v.Richard BUSH.

No. 34886.

Appellate Court of Connecticut.

Argued Sept. 15, 2014.

Decided April 7, 2015.

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Adam E. Mattei, deputy assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and C. Robert Satti, Jr., supervisory assistant state's attorney, for the appellee (state).

DIPENTIMA, C.J., and SHELDON and DUPONT, Js.

Opinion

SHELDON, J.

The defendant, Richard Bush, appeals from the judgment of conviction, rendered after a jury trial, of six counts of sale of narcotics by a person who is drug-dependent in violation of General Statutes § 21a–277 (a), six counts of sale of narcotics within 1500 feet of a school by a person who is drug-dependent in violation of General Statutes §§ 21a–277 and 21a–278a (b), one count of conspiracy to sell narcotics in violation of General Statutes §§ 53a–48 and 21a–278 (b), and one count of racketeering, based upon two of the six sales of narcotics of which he was convicted, in violation of the Corrupt Organizations and Racketeering Activity Act (CORA), General Statutes § 53–395(c).¹ On appeal, the defendant claims: (1) that there was insufficient evidence to establish that, while associated with an enterprise, he conducted or participated in the enterprise through a pattern of racketeering activity, as required to support his conviction for racketeering; and (2) that the trial court violated his constitutional right to represent himself at trial by denying his request for a reasonable continuance to review his attorney's case file before the start of evidence at trial.² We agree with the defendant on both of his claims. Accordingly, we reverse the judgment and remand this case to the trial court with direction to render a judgment of acquittal on the charge of racketeering and for a new trial on all of the other charges of which the defendant was convicted.

The charges upon which the defendant was brought to trial were all based upon his alleged involvement in seven separate sales of cocaine to a police informant, David Hannon, during an undercover police investigation of illegal drug activity in the area of Pembroke and Ogden Streets in Bridgeport between late June through early November, 2010. In an amended long form information dated January 3, 2012, the state charged the defendant, more particularly, with: one count each of sale of narcotics by a person who is not drug-dependent and sale of narcotics within 1500 feet of a school by a person who is not drug-dependent in connection with each such alleged sale; and one count each of conspiracy to sell narcotics and racketeering based upon his alleged involvement in all seven such alleged sales, as specially pleaded both in the conspiracy count, as overt acts in furtherance of the alleged conspiracy, and in the racketeering count, as incidents of racketeering activity claimed to prove his involvement in a pattern of racketeering activity, as required by General Statutes § 53–396(a). The jury found the defendant guilty of the lesser included offenses of sale of narcotics by a person who is drug-dependent and sale of narcotics within 1500 feet of a school by a person who is drug-dependent based upon his proven involvement in sales of cocaine to Hannon on six of the seven dates specified in the information, particularly June 30, July 14, July 16, August 6, August 24, and November 9, 2010. It found him not guilty, however, of all charges based upon the alleged sale of drugs to Hannon on June 25, 2010, the first date specified in the information. The jury also found the defendant guilty of both conspiracy to sell narcotics and racketeering, specifying as to the latter charge, in a special verdict rendered pursuant to § 53–396(b),³ that the sole basis for its finding that the defendant had engaged in a pattern of racketeering activity as a member of an enterprise was his involvement in the sale of cocaine on two of the seven dates specified in the information, June 30 and November 9, 2010, which it found to have constituted “incidents of racketeering activity.” The trial court later sentenced the defendant on all charges of which he was convicted to a total effective sentence of twenty years incarceration. Thereafter, the defendant filed this appeal. Additional facts pertaining to the defendant's claims on appeal will be set forth in the separate parts of this decision in which those claims are addressed.

I

We begin with the defendant's challenge to the sufficiency of the evidence to support his conviction for racketeering. “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.... This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... [W]e 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.” (Citation omitted; internal quotation marks omitted.) State v. Revels, 313 Conn. 762, 778, 99 A.3d 1130 (2014).

It is axiomatic that in order to determine whether there is a reasonable view of the evidence that supports the jury's verdict, we must first know upon which theory or theories of liability that verdict was returned. That, in turn, depends initially upon the particular theory or theories of liability on which the jury was instructed, for those are the only theories upon which the jury could logically and lawfully have based its verdict. Where, moreover, the verdict includes answers to interrogatories specifying the particular factual or legal bases upon which the verdict was based, the court must evaluate the sufficiency of the evidence to support that verdict under the theories so specified.

Cole v. Arkansas, 333 U.S. 196, 202, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (“[t]o conform to due process of law, [defendants are] entitled to have the validity of their convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court”).

To reiterate, in the count here challenged for evidentiary insufficiency, the defendant was charged with racketeering under § 53–395(c). Section 53–395(c) provides in relevant part: “It is unlawful for any person ... associated with ... any enterprise to knowingly conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity....” The term “enterprise,” as used in this and other parts of CORA, is defined in General Statutes § 53–394(c) to mean “any ... association or group of individuals associated in fact although not a legal entity, and includes illicit as well as licit enterprises and governmental, as well as other entities.” Interpreting this definition in a manner consistent with its identical counterpart in the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c), upon which CORA was modeled, our Supreme Court has held that proof of an “association in fact enterprise,” under CORA as under RICO, “requires evidence of (1) a purpose, (2) relationships among those associated with the enterprise and (3) longevity sufficient to permit the associates to pursue the purpose of the enterprise ... but does not require evidence of an ascertainable structure that exists for a purpose [b]eyond that inherent in the pattern of racketeering activity.... [T]he requirements for proving an association in fact enterprise do not include a hierarchical structure, fixed roles for its members, a name, regular meetings, dues, established rules and regulations, disciplinary procedures and induction or initiation ceremonies.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez–Roman, 297 Conn. 66, 81–83, 3 A.3d 783 (2010). Section 53–394(e), in turn, defines a “pattern of racketeering activity” as “engaging in at least two incidents of racketeering activity that have the same or similar purposes, results, participants, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents....” See also United States v. Burden, 600 F.3d 204, 216 (2d Cir.2010) (to establish pattern of racketeering activity under RICO, prosecution must prove at least two predicate acts that are related and amount to or pose threat of continued criminal activity).

Between the dates of the two cocaine sales upon which the defendant's racketeering conviction was expressly predicated, June 30 and November 9, 2010, the defendant was involved in four other sales of cocaine to Hannon in connection with which he was convicted as stated previously. Because, however, the jury found that only the June 30 and November 9, 2010 sales of cocaine constituted incidents of racketeering activity,⁴ we confine our detailed factual discussion and analysis to the events of those two days.

On June 30, 2010, Hannon met with members of a task force of officers from the Bridgeport Police Department and the Connecticut State Police Department to arrange for a controlled buy of cocaine from Jason Ortiz at the defendant's home on Pembroke Street in Bridgeport. To that end, Hannon telephoned Ortiz before arriving at the defendant's home, and also telephoned the defendant's home phone number. Prior to Hannon's arrival at the defendant's home, Ortiz, who was then under surveillance by other members of the task force, went to the rear of the home, then returned to the front porch with a small blue bag in his hand,...