State v. Gray

• Decision Date: 03 May 2022
• Docket Number: AC 43339
• Citation: 212 Conn.App. 193,274 A.3d 870
• Parties: STATE of Connecticut v. Bennie GRAY, Jr.
• Court: Connecticut Court of Appeals

212 Conn.App. 193

274 A.3d 870

STATE of Connecticut

v.Bennie GRAY, Jr.

AC 43339

Appellate Court of Connecticut.

Argued October 19, 2021

Officially released May 3, 2022

Raymond L. Durelli, assigned counsel, for the appellant (defendant).

Jonathan M. Sousa, deputy assistant state's attorney, with whom, on the brief, were Paul J. Narducci, state's attorney, and Sarah Bowman, assistant state's attorney, for the appellee (state).

Prescott, Moll and Cradle, Js.

CRADLE, J.

The defendant, Bennie Gray, Jr., appeals from the judgment of conviction, rendered after a jury

trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court (1) improperly denied his motion to dismiss the charges against him or, in the alternative, to suppress any evidence relating to currency seized during his arrest, thereby violating his right to due process under article first, § 8, of the Connecticut constitution, (2) abused its discretion by denying the defendant's postverdict motion for a new trial or, in the alternative, for a mistrial based on the state's late disclosure of forensic lab photographs, and (3) abused its discretion by permitting the state, on rebuttal, to present an enlarged copy of a lab photograph already in evidence and witness testimony on that photograph. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the late afternoon hours of May 9, 2018, four plainclothes officers from the vice and narcotics unit of the New London Police Department¹ (police department) were conducting surveillance near the intersection of Broad Street and Ledyard Street in New London. The officers were monitoring two convenience stores, the Gulf station located at 265 Broad Street and the 7-Eleven situated at the corner of Broad Street and Parker Street, which were locations known for narcotics trafficking. The officers were divided into teams of two, with investigators Todd Lynch and Jeremy Zelinski occupying one unmarked vehicle, and investigators Ryan Griffin and Joseph Pelchat occupying another.

At approximately 4:30 p.m., the officers noticed a man, later identified as Brian Drobnak, standing alongside

a Volvo sedan parked on the right side of the Gulf station parking lot. The officers observed Drobnak pace back and forth alongside the vehicle and continuously check his cell phone. They did not see Drobnak purchase gasoline, enter the convenience store, or use the air pressure machine near where the Volvo was parked.

Shortly thereafter, a dark blue Toyota Camry, operated by a man later identified as the defendant, drove into the Gulf station and stopped alongside the Volvo. The officers observed Drobnak enter the front passenger seat of the Toyota, remain inside the vehicle for less than one minute, exit the vehicle, and subsequently enter the Volvo through the driver's side door. The officers could not see what transpired between Drobnak and the defendant inside of the Toyota, but the brief nature of the interaction led them to believe that they had just witnessed a narcotics transaction. Accordingly, the officers decided that Lynch and Zelinski would investigate Drobnak, while Griffin and Pelchat would follow the Toyota. Lynch and Zelinski then drove into the Gulf station parking lot at the same moment that the Toyota was exiting the lot, parked their unmarked vehicle behind the Volvo, and exited the vehicle.² Lynch walked toward the driver's side door of the Volvo while Zelinski approached the passenger's side.

Through the driver's side window, Lynch observed Drobnak sitting in the driver's seat with a white, rock like substance in his lap. Lynch later testified that Drobnak appeared to be manipulating the rock like substance with the ink cartridge of a ballpoint pen. Lynch identified himself as law enforcement, at which point Drobnak attempted to conceal the ink cartridge and rock like substance in the empty space between the driver's seat and the passenger's seat. Zelinski then opened

the passenger side door, placed Drobnak in custody, and took possession of the rock like substance, which had fallen to the floor of the vehicle. Lynch performed a field test on the rock like substance, which returned positive for crack cocaine. Drobnak was arrested and given Miranda³ warnings. At the scene, Drobnak voluntarily agreed to speak with Lynch and Zelinski. He informed the officers that he had purchased $50 worth of crack cocaine from the man in the Toyota and showed them the phone number he had contacted to arrange the transaction.

Meanwhile, Griffin and Pelchat continuously had been monitoring the Toyota operated by the defendant since it had exited the Gulf station. After leaving the parking lot, the defendant traveled down Broad Street and turned into a Sunoco station, where he remained for a few minutes. Griffin and Pelchat observed a woman, later identified as Amanda Barton, emerge from a restaurant next to the Sunoco station and walk toward the Toyota carrying two plastic bags. Once Barton entered the Toyota, the defendant exited the Sunoco parking lot and turned onto Connecticut Avenue.

As Griffin and Pelchat continued to follow the Toyota, they were informed by the other officers that Drobnak was found in possession of narcotics, was placed under arrest, and had told the officers that he had purchased the narcotics from the operator of the Toyota. Believing this information provided probable cause to conduct a motor vehicle stop, Griffin and Pelchat requested that the police department send a marked police cruiser to assist them in apprehending the Toyota.⁴ Sergeant Gregory Moreau, the street sergeant assigned to the patrol shift, responded to the officers’ request.

Shortly thereafter, Moreau pulled behind Griffin and Pelchat, who were still following the defendant down Briggs Street. Moreau then maneuvered his police cruiser between the Toyota and the officers’ unmarked vehicle, activated his siren and overhead lights, and attempted to initiate a motor vehicle stop. Despite the siren and headlights, the defendant continued to drive forward at a slow speed. Moreau then used his vehicle's public address system to order the defendant to pull the Toyota over to the side of the road. After proceeding an additional two to four hundred feet, the defendant came to a stop. Moreau exited the police cruiser and walked toward the driver's side window of the Toyota, while Griffin, who had exited the unmarked vehicle, began to approach the Toyota on foot.

As Griffin drew closer to the Toyota, he observed Barton and the defendant appear to manipulate their hands near their waists. Concerned that Barton and the defendant could be concealing "weapons" or "narcotics" on their persons, Griffin and Moreau ordered the passengers to raise their hands to where the officers could see them. Barton complied immediately, but the defendant raised his hands only after Griffin issued a second verbal command. The officers removed Barton and the defendant from the Toyota and placed them in investigative detention. Griffin conducted a pat-down search of the defendant for weapons and, after feeling "a bulge in [the defendant's] pocket," uncovered $1268 in cash. Believing the cash to be the proceeds of narcotics transactions, the officers seized the currency. The officers also noticed three cell phones, including an LG cell phone, in the Toyota's center console. Although Barton and the defendant each claimed ownership of one of the phones, neither claimed to own the LG phone.⁵

Around that time, Pelchat, who had parked the unmarked vehicle a short distance away,⁶ approached the defendant's Toyota. Pelchat had been in contact with Lynch, who communicated that Drobnak had provided the officers with the phone number he had used to arrange the narcotics transaction. The officers agreed that Lynch would use his city-issued cell phone to call the number once Pelchat arrived at the motor vehicle stop. When Lynch placed the call, Pelchat observed the unclaimed phone ring in the Toyota's center console and display Lynch's phone number as the incoming caller. The officers seized the phone. The defendant was then placed under arrest and transported to the police department. No narcotics, residue, or paraphernalia were recovered from the scene.

At the station, Lynch asked the defendant why he was involved in selling narcotics, to which the defendant responded, "that's all I know." The defendant was subsequently charged, by way of a substitute information dated March 25, 2019, with one count of possession of narcotics with intent to sell in violation of § 21a-277 (a), and one count of possession of narcotics in violation of General Statutes § 21a-279 (a).⁷

Drobnak was transported to the New London police station, where he provided a written statement indicating that he had purchased $50 worth of "loose crack cocaine" from "G," and had done so on "at least three different occasions." Drobnak was also shown a photographic lineup consisting of eight photographs and was asked to

determine whether one of those photographs displayed the individual from whom he had purchased narcotics. He identified an individual other than the defendant. Later, at trial, Drobnak identified the defendant as the individual from whom he had purchased narcotics and testified that he had purchased the narcotics using two $20 bills and one $10 bill. Drobnak explained that he initially misidentified the defendant because his "anxiety was off the wall," he was going through withdrawal, and he "just wanted [the police interview] to be over and to be done with." He then testified that "[t]here is no doubt in my mind that [the defendant] is the man who sold me crack cocaine." Drobnak also testified that he was previously familiar with the defendant and had purchased narcotics from the defendant at least twice before. During cross-examination,...