State v. Campbell, 14566

Decision Date01 June 1993
Docket NumberNo. 14566,14566
Citation626 A.2d 287,225 Conn. 650
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. David CAMPBELL.

Deborah Del Prete, Asst. Public Defender, and G. Douglas Nash, Public Defender, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom were Philip D'Eramo, Asst. State's Atty., and, on the brief, Eugene Callahan, State's Atty., for appellee (state).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and SANTANIELLO, JJ.

BERDON, Associate Justice.

The defendant, David Campbell, was charged with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent pursuant to General Statutes § 21a-278(b), 1 possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, 2 and criminal impersonation in violation of General Statutes § 53a-130. 3 The defendant pleaded not guilty to all three charges and elected a jury trial. At trial, the state nolled the charge of criminal impersonation and the court granted the defendant's motion to dismiss that charge. The court also granted the defendant's motion for judgment of acquittal on the charge of possession of a weapon in a motor vehicle. After a jury verdict of guilty on the charge of possession of narcotics with intent to sell by a person who is not drug-dependent, the defendant was sentenced to a term of imprisonment of twenty years, execution suspended after nineteen years, and five years probation. The defendant appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 2003. 4 We affirm.

The defendant raises three issues on appeal: (1) whether the trial court improperly qualified David Eason, a Westport police officer, as an expert witness and allowed him to testify to his opinion that the defendant intended to sell the narcotics seized by the police rather than use them himself; (2) whether the trial court incorrectly instructed the jury that it was required to determine whether the defendant was drug-dependent at the time of the offense when no evidence of drug dependency had been presented; and (3) whether the trial court inappropriately instructed the jury as to reasonable doubt.

The following evidence was presented at trial. On November 11, 1989, Detective Michael Barrett observed a brown vehicle make a right turn at a red light. He followed the car onto Interstate Route I-95 and pulled the vehicle over. As Barrett approached the car, the driver of the vehicle drove away at a high rate of speed. Barrett testified that he had observed the driver's face and identified the defendant as the driver. Barrett returned to his car, radioed police headquarters, and pursued the vehicle for about two miles, at which point the engine in his car blew up. Eason passed by Barrett's disabled vehicle in pursuit of the defendant. Shortly thereafter, the brown vehicle flipped over and landed at the bottom of an embankment. Eason was joined by Trooper Warren Hyatt, Jr., who had with him a police dog. Both officers commanded the occupants of the vehicle not to move, but the driver ran and was followed by Hyatt and the dog. The dog caught the driver, who sustained bites to the left leg, shoulder and arm. A search of the car revealed a nine millimeter Beretta handgun. The police also recovered from the defendant an ammunition clip and a baggie containing 118 5 vials that in a field test were determined to contain crack cocaine.

I

The defendant's first claim is that the trial court abused its discretion when it improperly qualified Eason as an expert witness and allowed him to testify that in his opinion, the defendant had possessed the 118 vials of crack cocaine with the intent to sell, rather than the intent to use them personally. Defense counsel objected to Eason's testimony on the grounds that he was not qualified as an expert witness, and that his opinion about whether the vials were held for personal use or for sale was "the ultimate issue to be decided in the case. That is why we have the jury here." Defense counsel took an exception when the trial court ruled that Eason qualified as an expert witness and would be permitted to testify as to his opinion. 6

We turn first to the defendant's assertion that the trial court incorrectly qualified Eason as an expert witness. "The trial court has wide discretion in ruling on the qualification of expert witnesses and the admissibility of their opinions. State v. Girolamo, 197 Conn. 201, 214, 496 A.2d 948 (1985); State v. Biller, 190 Conn. 594, 617, 462 A.2d 987 (1983)." State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). We will not disturb the trial court's decision absent a showing of abuse of discretion or a clear misconception of the law. Id. "The true test for the admissibility of expert testimony is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the question at issue.... Generally, expert testimony may be admitted if the witness has a special skill or knowledge, beyond the ken of the average juror, that, as properly applied, would be helpful to the determination of an ultimate issue." (Citations omitted; internal quotation marks omitted.) State v. Forrest, 216 Conn. 139, 146-47, 578 A.2d 1066 (1990).

In the present case, Eason testified that he had been a police officer employed by the Westport police department for thirteen years, that he had been trained in conducting the field test used to analyze the narcotics seized in this case, that he had used the same test on previous occasions, that he had made "[p]ossibly hundreds" of narcotics arrests, that he had worked in an undercover capacity in the past and that he had come into contact with drug sellers. He further testified that he had performed the field test on the narcotics seized from the defendant. On the basis of this evidence, the trial court concluded that Eason qualified as an expert witness. Nevertheless, the defendant contends that this evidence does not establish that Eason had "a special skill or knowledge directly applicable to a matter in issue." We disagree. As we noted above, a trial judge is vested with wide discretion in assessing the qualifications of an expert witness. The central issue in this case was whether the defendant possessed the narcotics with the intent to sell or intended to use them for his own consumption. There is ample support for the trial court's finding that Eason's background as a police officer, his participation in numerous drug arrests, his undercover work and his encounters with drug sellers, in addition to his participation in the present arrest, constituted knowledge that would not be common to the average person and would be helpful to the jury in considering this issue. We conclude that the trial court did not abuse its discretion in qualifying Eason as an expert witness.

The defendant contends that even if Eason was properly qualified as an expert witness, he should not have been permitted to testify to his opinion on the ultimate fact of whether the defendant possessed the narcotics with the intent to sell or for his personal consumption. We agree with the defendant that the trial court should not have permitted the witness to testify to his opinion on this ultimate issue. We conclude, however, that the admission of Eason's opinion did not harm the defendant and does not warrant a new trial.

In State v. Vilalastra, 207 Conn. 35, 43, 540 A.2d 42 (1988), we held that the trial court improperly permitted the state's attorney to ask an expert witness, " '[w]hether or not the items found ... were possessed for either personal use and consumption or with the intent to sell and or dispense.' " We noted that "there is something rather offensive in allowing an investigating officer to testify not simply that a certain pattern of conduct is often found in narcotics cases, leaving it for the jury to determine whether the defendant's conduct fits the pattern, but also that such conduct fitted that pattern, at least when other inferences could have been drawn not unreasonably although perhaps not as reasonably as that to which the expert testified. United States v. Brown, 776 F.2d 397, 401 (2d Cir.1985), cert. denied, 475 U.S. 1141, 106 S.Ct. 1793, 90 L.Ed.2d 339 (1986)." (Internal quotation marks omitted.) Id., 207 Conn. at 44, 540 A.2d 42. Furthermore, the legislature has made clear that the ultimate issue of the defendant's intent is a question for the trier of fact to consider without expert testimony on this precise issue. See General Statutes § 54-86i. 7 Accordingly, we conclude that the trial court incorrectly permitted Eason to testify as to whether in his opinion the defendant possessed the drugs with the intent to sell or with the intent to use them personally.

We have often held that "the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved." (Internal quotation marks omitted.) State v. Vilalastra, supra, 207 Conn. at 46, 540 A.2d 42. Moreover, we have declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact. Id. at 47, 540 A.2d 42. " 'When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court's error. State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976).' State v. Jones, 205 Conn. 723, 732, 535 A.2d 808 (1988)." State v. Vilalastra, supra, 207 Conn. at 47, 540 A.2d...

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