State v. Cecarelli

• Decision Date: 21 September 1993
• Docket Number: 10636,Nos. 10635,s. 10635
• Citation: 631 A.2d 862,32 Conn.App. 811
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. John CECARELLI.

Page 862

631 A.2d 862

32 Conn.App. 811

STATE of Connecticut v. John CECARELLI.

Nos. 10635, 10636.

Appellate Court of Connecticut.

Argued June 11, 1993.

Decided Sept. 21, 1993.

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and Maxine Wilensky, Asst. State's Atty., for appellee-appellant (State).

Alexander H. Schwartz, Sp. Public Defender, for appellant-appellee (defendant).

Before DUPONT, C.J., and FOTI and SCHALLER, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sale of cocaine by a person who is not drug-dependent, in violation of General Statutes § 21a-278(b), and one count of possession of marijuana, in violation of General Statutes § 21a-279(c). He claims that the trial court improperly (1) failed to hold an evidentiary hearing before sustaining a witness informant's blanket invocation of the privilege against self-incrimination, as asserted through the witness' attorney, and (2) refused to strike the testimony of a state's witness despite the state's intentional destruction of the witness' prior statements. The state appeals challenging the trial court's decision to dismiss, after guilty verdicts, the defendant's conviction of possession of cocaine with intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278(b), and possession of cocaine, in violation of § 21a-279(a). The state claims that the trial court should have merged, rather than dismissed, the convictions.

The jury reasonably could have found the following facts. In May, 1990, David Ciarlelli, an undercover patrol officer assigned to the narcotics unit of the Hamden police department, began working with an informant, Anthony Gentile. Gentile, who had been arrested in North Haven on April 25, 1990, and had outstanding charges there, was a confidential informant for the North Haven police department, and was willing to cooperate with the Hamden police also. Gentile told Ciarlelli that the defendant, an acquaintance of Gentile, was involved in selling drugs. Ciarlelli ran a record check at that time and found that the defendant had never been arrested.

Over the next few months, Ciarlelli met with Gentile several times. Ciarlelli also conducted periodic drive-by surveillance of the defendant's house in Hamden but did not notice any suspicious activity there. On August 10, 1990, Ciarlelli, acting undercover, drove with Gentile to a parking lot near a soccer field in North Haven, where they met the defendant. Gentile introduced Ciarlelli to the defendant as his friend, Dave. Ciarlelli then observed what he believed to be a controlled buy of cocaine from the defendant, conducted by Gentile for the North Haven police department.

On August 16, 1990, Gentile called the defendant from the North Haven police department and arranged a purchase of narcotics. Ciarlelli and Gentile drove together to the defendant's house. The defendant gave a plastic bag, which he had removed from his sock, to Gentile in exchange for money; Gentile later gave the bag to the North Haven police department. Ciarlelli then told the defendant he wanted to purchase a gram of cocaine. The defendant went into his house and returned with a plastic bag containing a white powder, which he then sold to Ciarlelli for $100 of Hamden police department funds. The powder purchased by Ciarlelli tested positive for cocaine.

On August 29, 1990, Ciarlelli telephoned the defendant from the Hamden police department to arrange a purchase of an "eight-ball," the equivalent of two grams of cocaine. The defendant agreed and told Ciarlelli to drive over to his house. Ciarlelli drove there alone. On this occasion, he wore a transmitter that enabled Hamden police officers to monitor and tape the conversation between him and the defendant. The defendant met Ciarlelli at the door and, in exchange for $200 of department funds, sold him two plastic bags of a substance that later tested positive for cocaine. In response to Ciarlelli's query, the defendant gave the officer prices for various quantities of cocaine. Before leaving, Ciarlelli asked the defendant if he could purchase another eight-ball on August 31, 1990. The defendant agreed.

On August 31, 1990, Ciarlelli telephoned the defendant to inquire about the eight-ball he had ordered. The defendant said he had it and that Ciarlelli should come and get it. Ciarlelli, again wearing a transmitter that permitted monitoring and taping of the transaction, proceeded to the defendant's house. Upon Ciarlelli's arrival, the defendant went into the house and returned with a plastic bag containing a white powder that he sold to Ciarlelli for $200 of police department funds. This substance also tested positive for cocaine.

On September 7, 1990, officers from the Hamden police department and the statewide narcotics task force executed a search warrant at the defendant's house. A quantity of cocaine, two marijuana seedlings, drug paraphernalia, and several firearms were seized. The defendant was arrested outside of his house prior to the search.

Gentile was arrested by North Haven police on September 13, 1990, on unrelated felony charges.

I

THE DEFENDANT'S APPEAL

A

The defendant first claims that his state and federal constitutional due process rights to a fair trial and to establish a defense were violated by the trial court's failure to conduct a hearing on Gentile's intent, as represented by his attorney, to make a blanket invocation of his fifth amendment privilege against self-incrimination.

The defendant testified on his own behalf and presented the following evidence in support of his defense of entrapment. The defendant claimed that he met Gentile in 1981 but had not seen him for several years until 1990. In April or May of 1990 the defendant's fiancee, Roseann DeGolo, was attending drug rehabilitation meetings in North Haven; Gentile was also attending these meetings and he asked DeGolo to purchase drugs for him. Gentile telephoned DeGolo frequently to press this request. The defendant interceded on several occasions, demanding that Gentile stay away from DeGolo. On two or three occasions, however, the defendant purchased drugs and sold them to Gentile, in an effort to keep him from bothering DeGolo. The defendant stopped selling drugs to Gentile after DeGolo stopped attending the meetings.

According to the defendant, Gentile persisted in contacting him between May and July of 1990, calling his house as many as seven times a week to ask him to buy drugs. The defendant claimed that during this time he withstood Gentile's demands. On August 1, 1990, however, the defendant met with Gentile in North Haven. Gentile proposed a plan whereby he would obtain drugs from an East Haven dealer, sell them to the defendant, and then buy them back. Gentile said that his friend, Dave, would also buy drugs. The defendant agreed to the proposal. Thereafter, he bought cocaine from Gentile and sold half of it back to him on August 10, 1990, when he and Gentile met at a soccer field in North Haven. Ciarlelli was present at that time. The defendant alleged that Gentile bought the remaining cocaine from him around August 12, 1990. The defendant claimed that he again purchased cocaine from Gentile prior to August 16, 1990, the date on which he sold cocaine to both Ciarlelli and Gentile.

The defendant testified that he purchased cocaine again from Gentile some time between August 16 and August 29, 1990; he claimed that he sold part of this cocaine to Ciarlelli on August 29 and the remainder to Gentile some time before that date.

The defendant testified that early in the morning on August 31, 1990, the defendant met Gentile in New Haven and sold cocaine to him. At that time, Gentile allegedly gave him a paper bag containing drug paraphernalia that was seized from the defendant's house on September 7, 1990. Finally, the defendant claimed that he purchased more cocaine from Gentile on September 6, 1990, which he intended to sell to Ciarlelli. This cocaine, he claimed, was seized from his house on September 7, 1990.

The defendant's testimony indicated that Gentile was buying, selling and using cocaine during the time he was working with Ciarlelli as a police informant. He also presented a witness who corroborated his testimony that a transaction between him and Gentile occurred prior to the August 16, 1990 sale of cocaine to Gentile and Ciarlelli.

To support his claim that Gentile had induced him to take part in illegal activity, the defendant attempted to call Gentile as an adverse witness. Both the defendant and the state had issued a writ of habeas corpus ad testificandum for Gentile, and he was in the courthouse on April 29, 1991. Gentile did not appear before the trial court; his counsel, John Keefe, appeared on his behalf. Outside the jury's presence, the trial court asked Keefe whether, if a hearing was held to test the limits of the fifth amendment privilege, Gentile would invoke the privilege regardless of the question he was asked. Keefe said yes. The defendant objected, saying that a hearing with Gentile present was "absolutely essential" to determine if Gentile would invoke the privilege and to assess whether the invocation was proper. The trial court determined, however, that since Gentile's attorney had said his client would invoke the fifth amendment privilege no matter what questions he was asked, there was no point in holding a hearing. The defendant promptly took an exception to the court's ruling. He unsuccessfully renewed this claim at a hearing on his posttrial motions for judgment of acquittal and a new trial. We conclude that the hearing was essential.

All persons enjoy a constitutional right of immunity from being compelled to testify against themselves. U.S. Const., amend. V; Conn. Const., art. I, § 8. That right is a personal one. State v. Horwitz 108 Conn....