State v. Gonzalez

• Decision Date: 21 January 2003
• Docket Number: No. 21597.,21597.
• Citation: 74 Conn.App. 580,814 A.2d 384
• Court: Connecticut Court of Appeals
• Parties: STATE OF Connecticut v. Evaristo GONZALEZ, Fka William Sanchez, Fka Felix Aponte.<SMALL><SUP>1</SUP></SMALL>

Page 384

814 A.2d 384

74 Conn.App. 580

STATE OF Connecticut v. Evaristo GONZALEZ, Fka William Sanchez, Fka Felix Aponte.¹

No. 21597.

Appellate Court of Connecticut.

Argued October 24, 2002.

Decided January 21, 2003.

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FOTI, DRANGINIS and FLYNN, Js.

David B. Rozwaski, special public defender, for the appellant (defendant).

Peter D. Fearon, certified legal intern, with whom were Rita M. Shair, senior assistant state's attorney, and, on the brief, James E. Thomas, state's attorney, and Victor Carlucci, Jr., senior assistant state's attorney, for the appellee (state).

FLYNN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279 (a), conspiracy to possess narcotics in violation of General Statutes §§ 53a-48 and 21a-279 (a), possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a-48 and 21a-278 (b), operating a drug factory in violation of General Statutes § 21a-277 (c), and conspiracy to operate a drug factory in violation of General Statutes §§ 53a-48 and 21a-277 (c). On appeal, the defendant claims that (1) the trial court improperly denied his motions to suppress his inculpatory statements, (2) there was insufficient evidence to support his conviction and (3) the court violated his right against double jeopardy by improperly sentencing him on all three counts of conspiracy. Additionally, the defendant claimed at oral argument, and the state conceded, that the court further violated his right against double jeopardy by improperly sentencing him on both the possession and the possession with intent to sell counts. We affirm in part the judgment of the trial court but reverse it as to the sentence for multiple conspiracies and for both possession and possession with intent to sell.

The jury reasonably could have found the following facts. On October 13, 1999, Detective Ramon Baez of the vice and narcotics unit of the Hartford police department received information from a confidential informant that the Grand Chalet Hotel in Hartford was being used by a heroin supplier as a supply and packaging outlet. The informant also gave Baez information concerning an automobile driven by Orlando Ortiz, the codefendant in this case. Baez, with the use of an informant, then sought to conduct a "controlled buy" of heroin in room 271 of the hotel. Approximately ten or fifteen minutes after Baez and his partner, Detective Patricia Beaudin, escorted this informant to the hotel, the informant exited the hotel accompanied by Ortiz. The informant told Baez and Beaudin that he had made the buy and turned over nine bags of heroin. Baez later interviewed an employee of the hotel and learned that the room was rented to Felix Aponte of 41 Bond Street, Hartford.

Baez and Beaudin obtained a search warrant for room 271 of the hotel. Baez, Beaudin and two other officers, Sergeant Arvid Leftwich and Detective Anthony Martinez, searched the unoccupied room and found a duffle bag. The duffle bag contained 555 bags of heroin packaged for sale together with an additional twenty-three grams of raw heroin in pellet form, scales, packaging material and other drug paraphernalia. Police also seized from the room quinine and procaine cutting agents, coffee grinders to grind the pure heroin, packaging bags, heat sealing equipment, lactose, mortar and pestle to break down the heroin, strainers to break down the coarser heroin, and various other pieces of drug processing and packaging equipment.

Leftwich and Martinez left the hotel and went to the Bond Street address. On the basis of intelligence information given to them by Baez, they were searching for a short Hispanic male, with a light complexion and a bald head, who went by the name of "Willie." Leftwich and Martinez soon notified Baez that a suspect, fitting Willie's description, had been apprehended, and Baez and Beaudin went to the Bond Street address, took the suspect into custody and transported him to the Hartford police department. Once at the police station, Baez learned that the defendant, Willie, also known as William Sanchez, whom he had in custody, and Felix Aponte were one and the same person.²

Baez informed the defendant of his Miranda³ rights by reading aloud the police department's waiver form.⁴ Baez then gave the waiver form to the defendant and instructed him to read and initial the first five lines. Baez testified that he saw the defendant initial the waiver form, but the defendant, then, refused to sign it, stating that he did not want to sign any documents. Although the defendant had placed his initials on the first five lines, he then crossed out his initials on the first two lines and apparently reinitialed them after having crossed them out. Baez testified that he did not notice the defendant cross out his initials on the waiver form. Despite the defendant's statement that he did not want to sign any documents, the defendant did sign a money receipt for the $338 that was seized from him upon his arrest.

While the defendant was being interviewed, two members of the Hartford police department arrested Ortiz. When searched, Ortiz was in possession of the room key for room 271 of the hotel.

On January 20, 2000, Baez and Beaudin met with Jenny Vosney, a front desk clerk of the hotel, and showed her an array of eight photographs. She identified the defendant's photograph from that array and stated that he was the person she knew as Felix Aponte, the renter of room 271 from October 10 through October 15, 1999. Vosney also identified the defendant in court.

I

We first address the defendant's claim that the trial court improperly denied his repeated motions to suppress the statements he made to Baez during his interrogation. The defendant argues that the court should have granted his motion to suppress because he did not voluntarily, knowingly and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He contends that the manner in which he was interviewed, alone in a room with Baez and the duffle bag full of narcotics related evidence, created a coercive atmosphere. Specifically, he argues that "the crossing out of his initials on the first two lines [of the waiver form] and his refusal to sign any statement, along with the way in which the [police] interview was conducted, does not satisfy the waiver requirement. As such, his statements should not have been admissible during the course of the trial." We disagree.

"Pursuant to the fifth and fourteenth amendments to the United States constitution, a statement made by a defendant during custodial interrogation is admissible only upon proof that he ... waived his rights [under Miranda] .... To be valid, a waiver must be voluntary, knowing and intelligent.... The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights.... Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case.... Although the issue is therefore ultimately factual, our usual deference to fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence." (Internal quotation marks omitted.) State v. Williams, 65 Conn.App. 59, 72-73, 782 A.2d 149, cert. denied, 258 Conn. 923, 782 A.2d 1251 (2001).

"Furthermore, [although a] defendant's express written and oral waiver is strong proof that the waiver is valid"; (internal quotation marks omitted.) id., 73, 782 A.2d 149; the failure to sign a form or give a written statement does "not necessarily indicate an involuntary waiver." State v. Whitaker, 215 Conn. 739, 755, 578 A.2d 1031 (1990); see also State v. Shifflett, 199 Conn. 718, 732-34, 508 A.2d 748 (1986) (despite refusal to sign waiver form, voluntary waiver found); State v. Harris, 188 Conn. 574, 578, 452 A.2d 634 (1982) (defendant's incriminating oral admissions admitted despite refusal to sign written waiver and unwillingness to make written statement), cert. denied, 460 U.S. 1089, 103 S.Ct. 1785, 76 L.Ed. 2d 354 (1983); State v. Derrico, 181 Conn. 151, 154-56, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S.Ct. 789, 66 L.Ed.2d 607 (1980) (defendant, after initial hesitancy to sign waiver form, mutilated it after giving confession); State v. Frazier, 185 Conn. 211, 220-22, 440 A.2d 916 (1981) (defendant agreed to make oral, but not written statement to police), cert. denied, 458 U.S. 1112, 102 S.Ct. 3496, 73 L.Ed.2d 1375 (1982); State v. Pecoraro, 198 Conn. 203, 207-209, 502 A.2d 396 (1985) (waiver implied from defendant's exercise of right to cut off further questioning).

In this case, the court's conclusion that the defendant waived his Miranda rights voluntarily, knowingly and intelligently is supported by substantial evidence. Baez testified that he followed standard procedures when obtaining the waiver from the defendant. He asked the defendant if he wished to speak about the investigation, and the defendant answered in the affirmative. Baez read the waiver form to the defendant and went over it with him. Baez also gave the form to the defendant to read himself. The defendant initialed the form, but refused to sign it. Baez signed the form on the witness line. Beaudin was present and witnessed this advisement. Beaudin, however, was not present when Baez questioned the defendant.

Baez showed the defendant the evidence that was seized from room 271 and told him that Ortiz also had been arrested. Initially, the defendant was cooperative. When the defendant realized that he could not negotiate his...