State v. Forde

• Citation: 726 A.2d 132,52 Conn. App. 159
• Decision Date: 09 March 1999
• Docket Number: (AC 17636)
• Parties: STATE OF CONNECTICUT v. ANTONIO FORDE
• Court: Connecticut Court of Appeals

52 Conn. App. 159

726 A.2d 132

STATE OF CONNECTICUT v. ANTONIO FORDE

(AC 17636)

Appellate Court of Connecticut.

Argued November 10, 1998.

Officially released March 9, 1999.

Lavery, Landau and Hennessy, JS. Jeanne M. Zulick, special public defender, for the appellant (defendant).

Michael L. Regan, senior assistant state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Antonio Forde, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),¹ sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a)² and 21a-278 (b). The defendant claims that (1) the trial court improperly refused to grant his motion for a judgment of acquittal, which he based on his claim of insufficiency of the evidence, and (2) the prosecutor's closing argument, which included comments on the defendant's failure to testify and on facts not in evidence and his personal opinion as to the guilt of the defendant, denied the defendant his right to a fair trial. We affirm the judgment of the trial court. The jury reasonably could have found the following facts. On October 25, 1996, Officers Corey Poore and Robert Blanch of the Norwich police department received a report of alleged drug activity at the intersection of Lake and Pond Streets in Norwich, an area known for drug activity. After receiving the report, Poore and Blanch, who were patrolling the area on bicycles, responded and took up surveillance behind a fence in the backyard of a house on Boswell Avenue. This surveillance point allowed Poore and Blanch to see the intersection, where they observed three males sitting on a stone wall located approximately thirty-five to fifty yards from their surveillance point.

Within a minute of the officers' arrival at the surveillance point, one of the three men left the area.³ Soon thereafter, a male between twenty-five to thirty years of age drove up in a pickup truck. The driver stopped the truck next to the remaining two males. One of the subjects, later identified as the defendant, approached the passenger side of the truck. The officers observed the defendant reach into the open passenger side window and take money from the driver. When he received the money, the defendant made a subtle, waving motion to the second male, later identified as Wayne Scott, who was then standing approximately ten feet from the defendant. Thereafter, Scott walked toward part of the stone wall that was beyond the officers' view. The officers lost sight of Scott for less than ten seconds, and then Scott returned to the driver's side of the pickup truck and handed an item, which the officers could not identify from their vantage point, to the driver. The pickup truck then continued down the street and left the area.

After the officers had witnessed what they believed to be a "hand-to-hand narcotics transaction," Poore called the police dispatcher regarding the pickup truck and requested a police cruiser for assistance; the pickup truck, however, was never stopped.

Poore and Blanch then mounted their bicycles, rode to the area and confronted the defendant and Scott. The defendant and Scott were sitting in the spot where they had been prior to the arrival of the pickup truck. A police cruiser arrived at the same time as the officers. Poore and Blanche noticed that the defendant was still holding money in his hand, which was later seized and determined to be $460.⁴

After the defendant and Scott were detained, Blanch went to the section of the wall where he and Poore had momentarily lost sight of Scott and retrieved a paper bag holding small plastic containers with caps. The vials contained a white rock-like substance that tested positive for cocaine.⁵

The defendant was arrested and subsequently tried before a jury in June, 1997. During trial, an expert witness for the state, Sergeant Jeffrey Hotsky of the Connecticut state police, testified that possession of thirty-two vials of crack cocaine was consistent with possession with intent to sell as opposed to possession for personal use. He stated that it is common for street level drug dealers to have more than one person involved in sales, with one individual handing the money and the other individual handing the drugs. Hotsky also testified that dealers would keep only a small quantity of drugs on their person, while the bulk of the drugs were hidden nearby. At the close of the state's case, defense counsel made an oral motion for a judgment of acquittal on all three counts.⁶ The trial court denied the motion. The defendant was convicted on all charges, and this appeal followed.

I

The defendant claims that the trial court improperly refused to grant his motion for a judgment of acquittal. Specifically, the defendant argues that the evidence was legally insufficient to establish guilt of any of the charges beyond a reasonable doubt. We disagree.

"This court's review of claims relating to the sufficiency of the evidence to sustain a criminal conviction is governed by a well established standard of law. Whether we review the findings of a trial court or the verdict of a jury, our underlying task is the same.... We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant's guilt beyond a reasonable doubt.... State v. Joyner, 225 Conn. 450, 455, 625 A.2d 791 (1993)." (Internal quotation marks omitted.) State v. Knight, 50 Conn. App. 109, 112, 717 A.2d 274 (1998).

A

The first question before us is whether, from the facts presented at trial, it was reasonable for the jury to determine that the defendant had constructive possession of the cocaine that was seized from the stone wall, thereby supporting the defendant's conviction for possession with intent to sell in violation of General Statutes § 21a-278 (b).⁷ "General Statutes § 21a-278 (b) requires proof that the defendant possessed a narcotic substance. To establish possession, the state must show beyond a reasonable doubt that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); see also State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.... State v. Alfonso, [supra, 633]. Thus, the presence of the defendant near the contraband without more is insufficient to support an inference of possession. State v. Brunori, supra, 436." (Emphasis added; internal quotation marks omitted.) State v. Ober, 24 Conn. App. 347, 351-52, 588 A.2d 1080, cert. denied, 219 Conn. 909, 593 A.2d 134, 135, cert. denied, 502 U.S. 915, 112 S. Ct. 319, 116 L. Ed. 2d 260 (1991).

In this case, evidence was presented that included sufficient indicia of ownership on the part of the defendant to support the jury's determination. Poore and Blanch observed the defendant and Scott seated on a wall in an area known for active drug trafficking. After a pickup truck pulled up, the police observed the defendant approach the truck and take what appeared to be money from the unidentified driver and put it with money that he took out of his pocket. Poore and Blanch then observed the defendant signal to Scott who then went over to the wall on which they had been seated. Scott returned to the pickup truck and handed an unidentified item to the driver, who then left the scene.

Believing, on the basis of their experience, that a drug sale had occurred, the police confronted and arrested the defendant and Scott. The defendant was found to have $460 on his person.⁸ In addition, the officers retrieved a paper bag containing thirty-two vials of what was later determined to be crack cocaine from the wall that Scott had approached. On the basis of those circumstances, the jury could have reasonably inferred that the defendant had control over the drugs and that a sale had taken place. The jury's verdict with respect to the charge of criminal possession of narcotics with intent to sell is therefore sufficiently supported by the evidence.

B

The second issue is whether, from the facts presented at trial, the jury reasonably could have determined that the defendant had sold a narcotic substance in violation of General Statutes § 21a-278 (b). It is axiomatic that "the offense of the sale of a narcotic substance requires proof of a sale." State v. Smart, 37 Conn. App. 360, 368, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995). The defendant claims that the state did not prove the essential element of delivery to establish a sale and further that the state did not prove that the unidentifiable item sold was actually cocaine. This claim fails on the basis of our analysis in the preceding section and for the following additional reasons.

Here, Poore and Blanch observed money change hands between the defendant and the driver of the pickup truck. The defendant then signaled to Scott, who went to the stone wall and removed an item from a paper bag, which was later determined to contain a number of vials...