State v. Cato
| Decision Date | 29 June 1990 |
| Docket Number | No. 6897,6897 |
| Citation | 21 Conn.App. 403,574 A.2d 240 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Kevin CATO. |
Thomas Ullman, Asst. Public Defender, for appellant (defendant).
Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, was Michael Dearington, State's Atty., for appellee (State).
Before DUPONT, C.J., and FOTI and LAVERY, JJ.
The defendant appeals from his conviction, after a jury trial, of possession of narcotics with intent to sell, in violation of General Statutes § 21a-277(a). He claims that the court's exclusion of a statement made by him to the arresting officer violated evidentiary principles as well as his state and federal constitutional rights to present a defense. He also claims error in the court's denial of his request for the jury to view the scene of the alleged crime from the same point of surveillance as was used by the police to observe him just prior to his arrest and in its failure to give a certain requested jury instruction.
The jury could reasonably have found a number of relevant facts. Two police officers, Joseph Greene and Richard Randall, received information from an informant that led to a narcotics investigation conducted at a particular location known to the officers as the locale of frequent narcotics activity. The informant described a man wearing a beige jacket, sweat pants with lettering on the leg and a hat as being involved in the sale of narcotics at that location. The officers drove by the area in an unmarked vehicle, looking for an individual matching the given description. They observed the defendant, who fit the description, standing on a corner in front of a market. They began surveillance from their vehicle, which they parked diagonally across from the market.
The day was clear and the officers had a direct and unobstructed line of vision to the corner on which the defendant was standing. They observed him for twenty to thirty minutes without using binoculars or other vision enhancement equipment. During the period of surveillance, Greene observed the defendant walk back and forth, and enter and exit the market twice. He observed a male approach and have a discussion with the defendant who was holding a brown paper bag. He then saw the male hand money to the defendant, and the defendant reach into the bag and then hand something to the male.
Randall observed the defendant, who was holding a brown paper bag, approach a male and engage in what appeared to be a hand-to-hand narcotics transaction. Because the defendant's back was toward him, however, Randall did not actually see money change hands or the defendant reach into the bag. Both officers, on the basis of their training and experience, believed that the exchange had been an illegal narcotics transaction.
The officers then moved their vehicle and parked approximately twenty-five feet from the defendant. They got out of the car, displaying their police badges on chains around their necks, and approached him. The defendant threw the paper bag onto the ground. Greene followed the defendant into the store, and Randall kept sight of the bag and picked it up. He opened the bag and found inside it a potato chip bag containing sixteen glassine packets of powder, later identified as cocaine.
Randall then entered the store, and the defendant was placed under arrest. A search of him was conducted incident to his arrest, and $68 was found in his pockets, although no drugs or drug paraphernalia were found. At trial, both officers testified that it is unusual for a "mere user" of narcotics to carry such a large number of packets of cocaine and that it is not unusual for one person to sell the drugs while another person holds the money.
At trial, Gary Grant, the son of the market's proprietor, testified for the defendant. Grant, who had known the defendant for many years, testified that on the day of the defendant's arrest, a man named Brooklyn, whom Grant had never seen before, entered the store between 1:30 and 1:45 p.m. He also testified that the defendant first entered the store that day after 2 p.m. and that, fifteen to twenty-five minutes later, Brooklyn asked the defendant to throw away a brown paper bag. Grant stated that the defendant then went outside and threw the bag toward a trash container. Shortly after the defendant returned from outside, the two police officers entered the store and arrested the defendant. The witness testified that he and others told the officers that the defendant was throwing away the bag for someone else, but that no one said that the defendant was mistakenly being arrested. Grant also stated that no one confronted Brooklyn about his alleged ownership of the bag containing the drugs. Grant stated that the bag in evidence, which was the same bag that the officers had seen the defendant discard and which one of them had immediately retrieved was not the bag given to the defendant by Brooklyn.
At trial, the defendant, through an investigator, presented a videotape depicting the street corner in front of the market as seen from the surveillance point. The tape was filmed using a zoom lens to provide a closer view than that normally provided by a .35 mm camera. The defense also introduced a map of the area drawn to a scale of one inch to forty feet. Both parties, during closing arguments, stated that the distance from the point where the police officers were located during surveillance of the defendant to the point where the defendant was standing at that time was 600 feet.
The defendant first claims as error the exclusion of the answer of one of the arresting officers to the question of whether the defendant, at the time of his arrest, had denied ownership of the narcotics in the bag. The defendant claimed that the testimony was relevant to show his state of mind because intent was an element of the crime with which he was charged.
The statement in question was excluded by the court on the ground that it was inadmissible hearsay. The defendant argued that it was admissible under the state of mind exception to the hearsay rule because it was relevant to the question of knowledge of the presence of the drugs in the bag as well as to his intent.
A defendant's denial of guilt upon being accused and arrested is obviously self-serving. 1 An out-of-court statement denying guilt, therefore, is not admissible if offered for its truth. State v. McDowell, 179 Conn. 121, 125, 425 A.2d 935 (1979); State v. Savage, 161 Conn. 445, 448, 290 A.2d 221 (1971); State v. Carnegie, 158 Conn. 264, 272, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S.Ct. 488, 24 L.Ed.2d 455 (1969). Such a statement offered, however, to show a defendant's state of mind prior to or during the commission of a crime may be admissible under the state of mind exception to the hearsay rule. 6 J. Wigmore, Evidence (Chadbourne Rev.) § 1732. An out-of-court statement made after the completion of a criminal act is not admissible under the state of mind exception as to the intent or motive underlying that completed act. Id....
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