State v. Grant

• Decision Date: 14 April 1994
• Docket Number: No. 11630,11630
• Citation: 637 A.2d 1116,33 Conn.App. 647
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Gary GRANT.

Page 1116

637 A.2d 1116

33 Conn.App. 647

STATE of Connecticut v. Gary GRANT.

No. 11630.

Appellate Court of Connecticut.

Argued Nov. 29, 1993.

Decided March 1, 1994.

Certification Denied April 14, 1994.

John R. Williams, New Haven, for the appellant (defendant).

Judith Rossi, Assistant State's Attorney, with whom, on the brief, were Mary M. Galvin, State's Attorney, and Michael J. Weber, Jr., Assistant State's Attorney, for the appellee (State).

Before HEIMAN, FREDERICK A. FREEDMAN and SCHALLER, JJ.

FREDERICK A. FREEDMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48(a) and 21a-278(b). The defendant claims that (1) the conviction violated his right against double jeopardy, (2) the trial court improperly denied him access to, or an in camera review of, the drug treatment records of the chief prosecution witness in violation of the defendant's state and federal constitutional rights to confront his accusers, and (3) the trial court improperly denied his motion to suppress his confession. We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On March 12, 1991, Trooper Thomas Murray, acting undercover, contacted Odell Williams to purchase cocaine. This was a part of an ongoing investigation of the defendant and Williams involving a number of set up drug transactions. Williams and Murray arranged to meet in the parking lot of the Showcase Cinemas in Orange at 7:30 p.m. that evening.

Murray and the undercover narcotics team congregated in the parking lot of the Showcase Cinemas and positioned themselves at various points. Murray, wearing a body microphone transmitter, parked his vehicle and waited for Williams to arrive. Soon thereafter, Murray saw Williams and another man, whom he later identified as the defendant, enter the parking lot in a red Volkswagen Jetta. The defendant drove to the side of the lot opposite from where Murray was parked. Williams walked across the parking lot and entered the front passenger side of Murray's vehicle. The two men engaged in a brief discussion and Murray counted out $5500, the previously agreed-upon price for five ounces of cocaine. Williams then directed Murray to drive to where the Jetta was parked. Murray parked his vehicle so that the driver's sides of both cars were next to each other.

The defendant was seated in the driver's seat of the Jetta. Williams got out of Murray's vehicle, entered the right rear door of the Jetta and slid behind the defendant. Williams and the defendant engaged in a brief conversation, then Williams motioned for Murray to join them. Murray exited his vehicle and entered the right rear seat of the Jetta, but left the $5500 in the undercover vehicle. The defendant handed Williams a cardboard box, which Williams gave to Murray, indicating that the cocaine was in the box. Murray found a plastic baggie containing cocaine in the box.

At that point, Murray gave a previously agreed-upon oral arrest signal, but the undercover team failed to respond. Williams asked Murray for the money; Murray again gave the signal, and told Williams that he had to get the money from his vehicle. The undercover team again failed to respond to the signal. Murray then returned to his vehicle. At this time, the undercover team arrived in several vehicles and attempted to block the Jetta. As the officers approached, Murray put his hands on his head as if to surrender and shouted that the defendant had set him up. Police officers converged on the area. The defendant attempted to escape, but his vehicle struck a police vehicle.

The defendant was arrested at the scene and subsequently charged in six separate informations. ¹ The defendant entered a plea of not guilty to each count. The separate informations were consolidated for trial. The defendant was found guilty of one count of conspiracy to sell cocaine, as set forth in Docket No. CR5-88324.

I

The defendant first claims that his conviction of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48(a) and 21a-278(b) violated his constitutional right against double jeopardy. Specifically, the defendant claims that the jury verdicts convicting him of conspiracy to sell cocaine in Docket No. CR5-88324, and acquitting him of conspiracy to sell cocaine in Docket No. CR5-89040 violated his federal and state ² constitutional protections against double jeopardy. We disagree.

After the jury rendered its verdict, acquitting the defendant on all counts except conspiracy to sell cocaine in Docket No. CR5-88324, the defendant moved to set aside the verdict on the ground that it was inconsistent with the jury's acquittal on the sale count in that same information. This motion was denied. At the sentencing hearing, the defendant renewed his motion to set aside the verdict as inconsistent. The trial court denied this motion. On appeal, the defendant does not press his claim of inconsistent verdicts, but now seeks to claim a violation of his right against double jeopardy. This claim, not having been raised before the trial court, was not properly preserved.

"Pursuant to State v. Golding, [213 Conn. 233, 239-40, 567 A.2d 823 (1989) ], a defendant may prevail on an unpreserved claim of constitutional error only by meeting all of the following conditions: '(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.' State v. Marra, 222 Conn. 506, 527, 610 A.2d 1113 (1992). In harmony with the objective of Golding, the defendant's claim may be disposed of 'by focusing on whichever condition is most relevant in the particular circumstances.' State v. Golding, supra, [213 Conn. at] 240 ; State v. Pinnock, [220 Conn. 765, 778, 601 A.2d 521 (1992) ]." State v. Cooper, 227 Conn. 417, 440, 630 A.2d 1043 (1993).

Prong two of Golding requires that the defendant raise a claim of the violation of a fundamental constitutional right. The defendant "bears the burden of demonstrating that his claim is indeed a violation of a fundamental constitutional right 'rather than a common law or statutory claim wearing a constitutional mask.' " State v. Owens, 25 Conn.App. 181, 197, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991), citing State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990).

"The double jeopardy clause of the fifth amendment to the United States constitution provides: '[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....' ³ 'The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221 [2225], 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072 [2076], 23 L.Ed.2d 656 (1969).'... State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. John, 210 Conn. 652, 693, 557 A.2d 93 (1989); P. Robinson, Criminal Law Defenses (1984) § 68(a). In the context of a single trial, 'the threshold issue [in determining whether the double jeopardy clause is implicated is] whether multiple punishments have been imposed.' State v. John supra [at], 694 . 'The prosecution and submission to a jury of multiple charges arising from the same offense is not itself unconstitutional. See Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536 [2541], 81 L.Ed.2d 425 (1984).' State v. Devino, supra [195 Conn. at] 73-74 n. 4 ." (Emphasis in original.) State v. Anderson, 212 Conn. 31, 34-35, 561 A.2d 897 (1989).

Here, multiple punishments for the different counts brought by the state were not imposed against the defendant. The defendant was convicted and sentenced on only one count of conspiracy to sell cocaine. Therefore, the defendant's right against double jeopardy has not been implicated and we decline to review the defendant's claim under prong two of the Golding test. See State v. Anderson, supra.

II

The defendant next claims that the trial court improperly denied him access to, or in camera review of, the drug treatment records of the chief prosecution witness, Williams, in violation of the defendant's state and federal constitutional rights to confront his accusers. Although we agree with the defendant, we conclude that the error was harmless.

The following facts are necessary to the disposition of this claim. Williams testified for the prosecution that he and the defendant had jointly committed all the drug related crimes alleged in the information. On cross-examination, Williams admitted that he was addicted to drugs, using them daily at the time of the alleged crimes. He stated that he was under the influence of cocaine on each occasion. Williams testified that he had been incarcerated from the time of the last incident until four or five months later when he entered a drug treatment center. At this point, the defendant asked the court to make an in camera inspection of Williams' drug treatment records ⁴ to determine whether any information was contained therein pertaining to Williams' perception and memory. The court denied the defendant's request on the ground that the defendant had made no showing as to what the records could add to the cross-examination. The court further stated that because Williams admitted his addiction and treatment, the defendant had adequately impeached Williams. The defendant took an exception to the trial court's ruling.

The defendant continued his cross-examination of Williams. Williams admitted that he did not think his memory of the events was accurate...