State v. Grayton

Decision Date11 May 1972
Citation302 A.2d 246,163 Conn. 104
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. John GRAYTON.

Raymond J. Quinn, Jr., Public Defender, for appellant (defendant).

Francis M. McDonald, State's Atty., for appellee (state).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, JJ.

LOISELLE, Associate Justice.

The defendant was charged with possession of heroin, in violation of § 19-481(a) of the General Statutes, and transporting and possessing narcotics with intent to sell and dispense to another person, in violation of § 19-480(a) of the General Statutes. A jury returned a verdict of guilty on both charges. From the judgment rendered thereon and the denial of the defendant's motion to set aside the verdict, he has appealed.

The defendant's first claim of error is directed to the affidavit in support of the application for a search warrant, the search warrant and the return. It may be noted that none of these documents is in the finding or record. It is apparent, however, that the granting of the motion included in the record, entitled 'motion to enlarge record on appeal,' in which the defendant moved that the trial court include these documents in the file on appeal, was intended to make them a part of this record and we so consider it.

The attack on the sufficiency of the affidavit is without merit. The affidavit, sworn to by two veteran detectives, states in substance the following: A known and reliable informant, who had produced evidence leading to three convictions involving narcotics, told the affiants that heroin was being kept at and sold from a designated apartment occupied by the defendant and his girl friend, Ann Powell; the informant saw the defendant sell heroin and saw a large quantity of heroin in the apartment; the affiants saw three persons enter the apartment while the defendant and Ann Powell were present; the three persons stayed about five minutes; one of the three persons was a self-admitted addict; another reiable informant, whose information in the past has led to two convictions involving narcotics, related that the defendant was engaged in the business of selling heroin; this informant observed the defendant selling heroin from a described vehicle on a particular day; the described vehicle was registered to the defendant.

The defendant concedes that the information in support of the application for a warrant to search the described apartment was sufficient, but claims that insufficient facts were recited in the affidavit to support a search of the motor vehicle.

The principles by which we test the adequacy of an affidavit have been designed to insure that a disinterested judicial officer makes his own common-sense judgment that there is probable cause for the issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 38 U.S. 108, 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723; State v. Jackson, 162 Conn. 440, 444, 294 A.2d 517. Aguilar v. Texas, supra, 378 U.S. 114, 84 S.Ct. 1509, 12 L.Ed.2d 723, states the standard for determining whether an affidavit containing hearsay is sufficient for such an independent judgment: The magistrate must be informed of some of the underlying circumstances (1) relied on by the informant and (2) some of the underlying circumstances from which the affiant could conclude that the informant was credible or his information reliable. There is no doubt that the affidavit set out such circumstances. An informant saw the defendant make a sale from a car bearing a specified registration number. The police traced the registration number and found that it belonged to the defendant. Another informant saw the defendant make a sale at another location. Both informants were known to the affiants and considered reliable; both had previously given information which led to the conviction of violators of narcotics laws. See State v. Jackson, supra.

The defendant claims that the search warrant was defectively executed because the return for and inventory of property seized on the warrant did not recite that the police officers searched the defendant's apartment and found nothing. The return and inventory listed in the return conformed with the requirements of General Statutes § 54-33c. 1 General Statutes § 54-33c is clear and unambiguous. We see no requirement in the statute that a police officer on the return of a search warrant recite his activities while a making the search or describe any more than what he seized and where he seized it.

Prior to the time of trial the defendant, on motion for discovery, received a copy of the arresting officer's report. The report is in the nature of a form with spaces for name, address, offense, location of offense, date and time. The three remaining spaces are headed, 'List physical evidence,' 'Custody of evidence' and 'Describe arrest.' The officer listed 'Fifteen (15) Glassine Envelopes of White Powder. (Heroin)' in the first space; 'Special Service Division' in the second space; and, in the third space, recited that he and two other police officers had approached the defendant, who was seated in a parked vehicle, told him they had a search warrant, searched him and the vehicle, found fifteen glassine envelopes in the trunk of the vehicle, arrested him, advised him of his rights, brought him to police headquarters and booked him. No other activities are recited in the report, except the confiscation of the vehicle and a field test of the white powder which showed it to contain heroin.

The defendant claims that the officer's omission of any reference to the unsuccessful search of the apartment and the conversation in the apartment with Ann Powell was a violation of his constitutional rights, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737. Both of these cases hold that suppression by the prosecution of evidence favorable to an accused on request violates due process where the evidence is material either to guilt or to punishment. In the case at bar, the fact that a search of the defendant's apartment was unsuccessful had no exculpatory effect on the charges against him or the punishment for them. At the time of the search of the defendant's apartment, a police officer had a conversation with Ann Powell. That conversation, hereinafter alluded to in a different context, was in no way exculpatory; in fact, it could only have been harmful to the defendant. Further, the defendant was fully apprised, during the course of the trial, that the police found heroin only in his vehicle. The appendix to the defendant's brief also reveals that the defendant testified that Ann Powell had visited him after his arrest, that he received a letter from her, and that she had told him of the thorough search of the apartment.

Another claim of error of the defendant is the failure of the police to arrest Ann Powell in order to insure that she would be available to testify at his trial. This ground is not argued in the defendant's brief and is, therefore, considered abandoned. State v. Benson, 153 Conn. 209, 217, 214 A.2d 903; State v. Harris, 147 Conn. 589, 591, 164 A.2d 399. The other claims of error in denying the motion to set aside the verdict are without merit and do not warrant discussion.

The defendant argues that, as he was charged with crimes alleged to have been committed on December 8, 1969, it was error to admit in evidence testimony that, prior to the date of arrest, a police officer observed the defendant and Ann Powell entering their apartment, followed by Clifford Williams, a known heroin addict, who remained in the apartment about five minutes. This evidence was relevant to the count of possession with intent to sell and dispense narcoties to another person. Further, nowhere in the record is there any indication that an objection or exception was taken to any of this evidence. Consequently, it is not subject to review. State v. Hawkins, 162 Conn. 514, 517, 294 A.2d 584.

During his own direct examination, the defendant testified to the subject matter of a conversation, which he had overheard at police headequarters, between two police officers. The conversation concerned what one of the officers had heard from the said to Ann Powell and what he had observed while searching the apartment occupied by the defendant and Ann Powell. The state, on rebuttal, presented that police officer to testify as to what he said while in the presence of the defendant. The officer testified that, contrary to the defendant's claim, the conversation did not include any statement that heroin was found in the apartment. The conversation, according to the officer, did include a statement that Ann Powell had stated that heroin, which had been removed from the apartment before the police search, belonged to the defendant. When this rebuttal testimony was given, the only comment by counsel was as follows: 'Mr. Daly: If Your Honor pleases, I am not clear now as to whether we are relating a conversation with Ann Powell which would be hearsay and objectionable or whether we are relating a conversation that took place in the police station. Q. Relate the conversation of what you told Lieutenant Griffin.' There was no further comment, objection or exception to the testimony of the police officer about this conversation at police headequarters. Even had an exception been taken, there would be no basis for the defendant's assigning the admission of the testimony as error.

If the state offered this testimony either in its case in chief or on rebuttal for the truth of the statement made, it would be inadmissible as hearsay evidence. Obermeier v. Nielsen, 158 Conn. 8, 11, 255 A.2d 819. As the defendant introduced this testimony in his case in chief, the state had a right on rebuttal to have the officer relate what he claims...

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