State v. Delarosa

• Decision Date: 06 September 1988
• Docket Number: No. 6178,6178
• Citation: 16 Conn.App. 18,547 A.2d 47
• Parties: STATE of Connecticut v. Juan Roberto DELAROSA.
• Court: Connecticut Court of Appeals

Page 47

547 A.2d 47

16 Conn.App. 18

STATE of Connecticut v. Juan Roberto DELAROSA.

No. 6178.

Appellate Court of Connecticut.

Argued May 12, 1988.

Decided Sept. 6, 1988.

Patricia J. Leary Campanella and Daniel F. Sullivan, with whom, on the brief, were Nancy A. Porter and Christopher Foster, Hartford, for appellant (defendant).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John C. Smrigna, Asst. State's Atty., for appellee (State).

Before BORDEN, DALY and NORCOTT, JJ.

NORCOTT, Judge.

After a trial to a jury, the defendant was found guilty of possession of cocaine with the intent to sell in violation of General Statutes § 21a-278(b) and conspiracy in violation of General Statutes § 53a-48. ¹ The defendant appeals from the judgment of conviction.

The defendant claims that the trial court erred (1) in denying the defendant his right to a fair trial by its conduct and comments throughout the trial, (2) in denying the defendant's motions to sever his trial from that of his codefendants, (3) in failing to suppress evidence seized in violation of his fourth amendment rights, (4) in denying the defendant's motion for acquittal, (5) in instructing the jury on the elements of conspiracy and on the effect of reputation evidence, (6) in admitting into evidence bags of cocaine as to which the defendant claims the state inadequately established the chain of custody, and (7) in allowing certain expert testimony as to the number of packages which could be produced from the seized contraband. We find error on the first and second issues and remand for a new trial. There is no error on the remaining five issues, ² and we will discuss those issues only to the extent necessary to provide guidance to the trial court at the new trial.

The jury could reasonably have found the following facts. On September 22, 1986, Trooper Bruce Whitaker was on patrol for motor vehicle violations on Interstate 95 in the town of Fairfield. At approximately 12:50 p.m., Whitaker stopped a vehicle containing three males for driving too close to another vehicle near exit 19. Whitaker radioed for backup assistance and Trooper Robert Kenney responded. Whitaker then proceeded to request the driver's license and registration. The car was driven by Juan Soto. Hector Baez and the defendant were passengers in the right front seat and right rear seat, respectively.

While Whitaker was questioning the driver, Kenney went to the right side of the stopped vehicle and observed chunks of white powder, later proven to be cocaine, on the floor where the defendant was seated. Kenney was a certified instructor in the field of narcotics.

When Kenney inquired about the chunks of powder, he discovered that the defendant, who Kenney noticed was "fidgety," "nervous" and continually wiping his nose, did not speak English. Soto responded to the officer's questions by stating that he did not know if narcotics were present within the vehicle. After Kenney had ordered the three men out of the car, he noticed a bulge under Baez's shirt. A subsequent pat-down revealed that the bulge was created by a beeper. Further observation of the interior of the automobile revealed a trail of powder leading from the right front floor area to the area of the seat belt recoil receptacle. In this area, Kenney saw "protruding from the opening where the seat belt recoils" a clear plastic baggie containing white powder. Kenney then seized the Baggie, placed Baez, Soto and the defendant under arrest and read them their Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, a search of the trunk of the car revealed a grocery bag which contained newspaper that was wrapped around more baggies of white powder which later proved to be cocaine.

At the Westport state police barracks, Soto told Kenney that he worked for a "big guy" in Boston and traveled to New York on drug runs for which he was paid $500 per trip. He further said that the beeper was used to keep in touch with the "big guy." Soto also told the police that he and others made several trips per week to transport cocaine from New York.

I

We first address the defendant's claim of judicial misconduct. During the defendant's trial, the state produced as a witness Trooper Dennis Coyle who had assisted Kenney with the investigation of Soto's car while it was impounded at the parking lot of the Westport barracks. As a part of its case, the state sought to establish Coyle's experience in dealing with narcotic dealers and users and to have him give an opinion concerning the value of the seized cocaine. The court, after indicating to the state that it had not sufficiently developed Coyle's "experience on the street," sustained a defense objection as to Coyle's opinion of the street value of the seized material.

Following the direct and cross-examinations of Coyle, the court began to question the witness, sua sponte, to "educate" the jury as to the form cocaine takes, its geographical origins, how it is prepared for street sale, how it is purchased, how it is ingested, and its street value. During the court's questioning of Coyle the following colloquy occurred:

"The Court: I only have two questions, Trooper, and that's only because my view is that I know nothing about the case, as the jurors don't and I also concern myself that the jurors, law abiding citizens, have never had cocaine in their possession.

"What is the form that cocaine would take and how does it relate to what we're talking about here, powder, blocks, flake and he's used the word crack? And that apparently, all those things taken together lead one who is uninformed to a confused state. Do you understand what I'm talking about?

"The Witness: Yes sir.

"The Court: What you may know by second nature where the jurors are totally ignorant of?

"The Witness: Yes sir.

"Mr. Schipul [counsel for the defendant]: I object to Your Honor's question.

"The Court: Objection is noted.

"Mr. Schipul: As inflammatory and irrelevant to this inquiry.

"The Court: It's merely educational. It has nothing to do with the ultimate questions in this case.

"Mr. Schipul: The probative value is far outweighed by the prejudicial effect, Your Honor. I'll take an exception.

"The Court: I'll give you an opportunity to cross-examine on my inquiry as I always do.

"Would you tell them?

"The Witness: Cocaine comes packaged from Colombia, primarily, South America. It comes in a block form and it's compressed and it's very flaky. And when it's used, it's usually cut up finely with a razor blade. It's also, when it comes to this country, it's also mixed with many other white powders to double the value or triple the value depending upon how much other substance you add to it.

"When it comes in block form, it's usually in its pure state, and it tends to flake off of the blocks. It has chips and it's kind of a hard substance. And when cocaine is actually used, it's actually a very fine white powder.

"Now, crack is processed cocaine. It's actually cooked like baking soda. And then it--And all that remains is a very high quality, high grade pure form of cocaine. And crack is smoked. But it's a very hard, small white chunk.

"The Court: And what are the substances that are mixed with cocaine?

"The Witness: (Inaudible) powder. Any kind of white powder, vitamin E could be used. Any kind of white powder primarily. They use anything at all.

"The Court: And how is that used by a consumer?

"The Witness: It's usually mixed with the cocaine. And usually the consumer--it's chopped finely and put into lines. They usually snort it, ingest it through their nose. It can be injected or it would be heated, free based.

"The Court: How would one--If one snorts dry substances, they inhale it through the nostrils, is that correct?

"The Witness: Yes sir.

"Mr. Schipul: Objection, Your Honor. Again, it's irrelevant.

"The Court: I'll give you an opportunity to cross-examine.

"Mr. Schipul: I'll take an exception.

"The Court: And if one does not and utilizes it in the fashion of administering it internally to the vein, how is it so that the needle may do it? It's in a dry state, isn't it?

"Mr. Schipul: Objection, Your Honor. Irrelevant.

"The Court: Right.

"Mr. Rebollo [counsel for Baez]: The same objection, if Your Honor please.

"Mr. Schipul: Exception.

"The Court: Go ahead.

"The Witness: It can be heated, it then becomes a liquid form. And the liquid form is then injected into the vein.

"The Court: And one person buys it for however they are going to use it, in what quantities is it purchased?

"Mr. Schipul: Your Honor, I would object.

"The Court: (continuing) On the street. I'll give you an opportunity to cross-examine.

"Mr. Schipul: Your Honor is placing yourself in the form of a second prosecutor at this point.

"The Court: No, I haven't at all.

"Mr. Schipul: Taking an adversary approach.

"The Court: I'll take care of objections in a minute. I've already prefaced it. It's educational. The jury has no conception, presuming they all abide by the law, they don't have any experience with the subject.

"Mr. Rebollo: Exception.

"The Court: All right.

"The Witness: Cocaine is sold by weight, which a quarter gram would be $25. A half gram would be $50. An entire gram is usually $100 to $125. And it's also purchased by ounces, eighth ounces, quarter ounces, half ounces and then multi ounces, pounds, half pounds, quarter pounds and kilograms.

"The Court: Okay. Any questions on my inquiry?

"Mr. Schipul: Your Honor, I move to strike your questions and the answers as irrelevant and inflammatory and outside the scope of examination.

"The Court: I said I'd be right around to you in a second.

"Mr. Schipul: Thank you, Your Honor."

The defendant's objections and motions to strike this line of judicial questioning were subsequently denied.

The defendant's first claim of error is that the court's...