State v. Gilbert

• Decision Date: 06 April 1999
• Docket Number: (AC 16536)
• Citation: 727 A.2d 747,52 Conn. App. 531
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DONNIE LEWIS GILBERT

52 Conn. App. 531

727 A.2d 747

STATE OF CONNECTICUT v. DONNIE LEWIS GILBERT

(AC 16536)

Appellate Court of Connecticut.

Argued December 15, 1998.

Officially released April 6, 1999.

Landau, Spear and Healey, Js. Conrad Ost Seifert, with whom, on the brief, was William W. Fisher, Jr., 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

HEALEY, J.

The sole issue¹ of this appeal is whether there was sufficient evidence² to prove beyond a reasonable doubt that the defendant was guilty of possession of a narcotic substance, i.e., cocaine, with the intent to sell in violation of General Statutes § 21a-278 (b).³ We find the evidence sufficient to support the defendant's conviction, and we affirm the judgment.

The jury reasonably could have found the following facts. On December 6, 1995, at about 8:30 p.m., Trooper Robert Bardelli of the Connecticut state police and Officer Sean Dautrich of the New London police department were both assigned to the east office of the statewide narcotics task force.⁴ At that time, they were conducting surveillance on Summer Street, an area of high volume drug activity. Bardelli and Dautrich had received information of drug activity at a two-story house located at 33 Summer Street.⁵ The officers had set up their surveillance on December 6, 1995, for the purpose of gathering information to be used at a later date. Both officers were in plain clothes and were seated in an unmarked car across the street from 33 Summer Street approximately seventy-five to 100 feet away. Although it was night, there was sufficient lighting. There was a light on the front porch of 33 Summer Street, and the house was illuminated by streetlights, although there was no streetlight directly in front of the house. Traffic on that section of Summer Street is one-way.

During their surveillance, the two officers saw five or six males in front of 33 Summer Street. They recognized several men including the defendant, Douglas Foy and Harry McMurray. Dautrich was acquainted with the defendant because Dautrich's beat included Summer Street. Both the defendant and Foy are black males and wore dark rain suits. The defendant is taller than Foy.

During the surveillance, the officers observed the defendant come down the front porch stairs of 33 Summer Street and meet vehicles that came down Summer Street and stopped at that address. The defendant would lean into a stopped vehicle, then stand up and that vehicle would leave the scene. At that point, the defendant would go around to the side of 33 Summer Street, out of the sight of both Bardelli and Dautrich for a short period of time, and come back and stand near the doorway as he had earlier. The officers observed the defendant repeat that process on at least three occasions. Although Bardelli said that he did not see an exchange of items between the defendant and the vehicles' occupants, he believed on the basis of his training and experience that he was observing narcotics transactions.

Additionally, on at least two occasions, the officers saw the smaller black male in a rain suit do the same thing as the defendant. There were also people walking up to the two men in the rain suits and to Bardelli "it looked like they were making exchanges."

Thereafter, about twenty-five minutes into their surveillance, a clearly marked New London police cruiser pulled up to 33 Summer Street. This cruiser was occupied by Officers Joohno Song and Kyle Baskett.'⁶ Each officer was in uniform. Both Song and Baskett were unaware of the surveillance being conducted by Bardelli and Dautrich. As the cruiser approached 33 Summer Street, Song noticed four to five people on the porch and front steps of that building. He turned on the cruiser spotlight and Baskett turned on the left alley light⁷ to make the area more visible. Song recognized three persons, Harry McMurray, James Cook⁸ and the defendant. Baskett recognized three persons, including the defendant, who was standing in the doorway. When the alley light was put on, the defendant and the shorter male in the dark rain suit both ran inside the front door of 33 Summer Street. The defendant and the shorter male were the only ones who fled when the area was illuminated by the cruiser lights. As Song and Baskett were exiting their cruiser, they heard a message on their radio from Dautrich to stop the two men that were going inside the house. Bardelli and Dautrich then exited the unmarked car and joined the pursuit. Bardelli and one of the uniformed officers went into the house and ran upstairs. Bardelli observed the two men in the rain suits run up the stairs to the second floor.⁹ Dautrich had gone to the rear door of the building, which was shut and barred access. Later, he was joined at the rear of the building by Song.¹⁰

At about 8:30 p.m. on December 6, 1995, Melissa Caisse was in the second floor apartment of 33 Summer Street. She had come there with a friend, Beatrice White, to see Joey Lewis' daughter. Although this was Lewis' apartment, Lewis was not there at that time. Several people other than Caisse and White were also in the apartment, including a person named Justice and one named Chicago. The defendant and Foy came into the apartment after these people had arrived. Thereafter, there was a knock on the door whereupon the defendant and Foy immediately went out the back door of the apartment. No one else left the apartment. A woman answered the door. Bardelli told her that they were police officers and that they had seen two people run up to the second floor. She said that nobody had run into the apartment. Although the officers looked around the apartment, they did not see the two persons they had pursued up the stairs. In the meantime, Dautrich remained downstairs outside the closed rear door of the building. That door had several panes of glass covered by a curtain. Two persons were attempting to exit the back door. Suddenly, the curtain on the door moved and Dautrich saw the defendant looking out at him. Dautrich also saw another person with the defendant but did not recognize him. Both individuals inside then ran up the rear stairs.

Bardelli heard somebody shout that the two men were trying to get around to the back of the house. Bardelli and the police officer with him went through the back door of the second floor apartment that led to a foyer, which accessed the rear part of the house. In the foyer, they found piles of trash bags and the defendant and Foy in rain suits hiding among the garbage bags. The officers pulled both from among the garbage bags and brought them back into the Lewis apartment. They checked each of them for weapons and narcotics, but found nothing.¹¹

Bardelli then told some of the officers¹² to look around the side of the building where they had observed the defendant during their surveillance and to check the area for narcotics. Dautrich, Song and Baskett took part in this search. Baskett discovered a paper bag under a set of stairs to a side door. Inside the paper bag was a plastic bag in which were thirteen smaller bags containing a white rock-like substance. The paper bag, however, was discarded by the police as they already had the plastic bag containing thirteen individual bags. Those bags were turned over to Bardelli. Field testing performed by Bardelli and Dautrich was positive for the presumptive presence¹³ of cocaine. Tests later performed by the state toxicology laboratory found that the substance contained crack cocaine.

After the crack cocaine was found, Bardelli arrested the defendant¹⁴ and seized $479 and a beeper from him. The defendant was unable to tell Bardelli how much money he had on his person and refused to tell him where he had obtained the money. At the time of his arrest, the defendant was not employed but did odd jobs for which he did not receive pay stubs.

The state's expert testified that in December, 1995, the price of a single rock of cocaine in New London was approximately $20, sometimes, two for $35. According to expert testimony at the trial, when a person is in possession of thirteen bags of crack cocaine, such possession is more consistent with possession with intent to sell than with possession for personal use. Often street level dealers, fearful of apprehension or theft, do not keep the drugs they offer for sale on their own person. There was expert testimony that drugs are kept close to the scene of the sale in an area that is accessible to dealers and that "gives them a certain control over the amount of drugs in the stash."

The standard of review for a sufficiency of the evidence claim is well settled. "Our Supreme Court has stated: `In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.' ... State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990)." State v. Ingram, 43 Conn. App. 801, 809, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997); see also State v. Torres, 47 Conn. App. 205, 219, 703 A.2d 1164 (1997).

In Ingram, this court said: "`We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d...