State v. Grullon

• Decision Date: 18 July 1989
• Docket Number: No. 13453,13453
• Citation: 212 Conn. 195,562 A.2d 481
• Parties: STATE of Connecticut v. Pedro GRULLON.
• Court: Connecticut Supreme Court

Page 481

562 A.2d 481

212 Conn. 195

STATE of Connecticut v. Pedro GRULLON.

No. 13453.

Supreme Court of Connecticut.

Argued May 5, 1989.

Decided July 18, 1989.

Michael B. Dashjian, Sp. Public Defender, for appellant (defendant).

Susan C. Marks, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Warren Maxwell, Assistant State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, GLASS, HULL and SANTANIELLO, JJ.

PETERS, Chief Justice.

This appeal raises three principal issues: the validity of a conviction based upon a unilateral conspiracy, the admissibility of a warrantless wiretap procured with the consent of one of the parties, and the constitutionality of a statutory exemption for drug dependent persons. A jury found the defendant, Pedro Grullon, guilty on one count of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(a) and one count of conspiracy to possess and transport cocaine with intent to sell in violation of General Statutes §§ 21a-277(a) and 53a-48(a). The trial court thereupon sentenced him to a term of imprisonment of thirteen years for each count, to run concurrently. The defendant appealed this judgment to the Appellate Court. We transferred the appeal to ourselves pursuant to Practice Book § 4023. We find error and remand for a new trial on the conspiracy count.

The jury could reasonably have found the following. The defendant's half brother, Edwin Caraballo (the brother), was arrested by the Manchester police on January 12, 1986, on drug charges unrelated to the defendant. The brother, while in police custody, agreed to cooperate with the police and made two calls to the defendant, which he permitted the police to record. The brother arranged for the defendant and a third party to bring one pound of cocaine from New York to the brother in Manchester. These conversations were in Spanish. In subsequent unrecorded telephone calls forwarded to the brother in the police facility where he was being held, the brother learned that, to implement the drug delivery, the defendant and another Hispanic male planned to arrive in Hartford on a Trailways bus scheduled to depart New York at about 5:30 p.m. on January 14 and, on arrival, to take a taxi cab to the brother's home at 17 Hazel Street in Manchester, where they would deliver the cocaine. The brother relayed this information and a description of the defendant to the police.

Detective Joseph Morrissey, a Manchester police officer, was stationed at the Trailways bus station when the bus arrived. He saw the defendant, whom he recognized from the brother's description, and another man, Francisco Lora, go to a pay phone and heard the defendant make a telephone call in Spanish, which Morrissey could not understand. He then saw the defendant give the telephone to Lora, who also spoke in Spanish. The only recognizable word that Morrissey heard Lora say was "Hazel." The defendant and Lora then took a taxi to 17 Hazel Street in Manchester where the police searched the defendant's shoulder bag, discovered eighteen ounces of cocaine, and arrested him and Lora.

On appeal, the defendant claims that the trial court erred in: (1) charging the jury that the defendant could be guilty of conspiracy with his brother; (2) admitting into evidence the transcripts of telephone conversations between the defendant and his brother; (3) charging the jury as to entrapment; (4) admitting hearsay evidence; and (5) holding that General Statutes § 21a-278 does not violate the defendant's constitutional right to equal protection. We find error in the trial court's instructions on the conspiracy charge and no error on the other claims.

I

The defendant makes a tripartite claim of error with regard to the trial court's charge to the jury on the conspiracy count. He contends that: (a) a defendant cannot be guilty of conspiracy pursuant to General Statutes § 53a-48 ¹ unless the state has proven beyond a reasonable doubt that he conspired with another who is not a police informant or agent, because the statute requires that there be an agreement between the coconspirators; (b) the court's instructions erroneously permitted the jury to convict him on this count on the theory of his having conspired with his brother, who was acting as a police informant; and (c) the court erroneously denied his motion for acquittal of the conspiracy charge, because there was insufficient evidence to support a finding of his having conspired with any person other than his brother. We agree with the first two contentions, but not with the third.

A

Our examination of the definition of the crime of conspiracy in § 53a-48 convinces us that the legislature has determined that conspiracy requires a showing that two or more coconspirators intended to engage in or cause conduct that constitutes a crime. Under our statute, therefore, a defendant cannot be guilty of conspiracy if the only other member of the alleged conspiracy lacks any criminal intent. Accordingly, we reject the state's argument to the contrary, that the requirements of § 53a-48 are satisfied by proof that the defendant himself intended to engage in criminal conduct without any coconspirator sharing his criminal intent.

Our interpretation of § 53a-48 is informed by the "well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature." State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); see also Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). In ascertaining that intent, "[i]f the words are clear and unambiguous, 'it is assumed that [they] express the intention of the legislature'; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); and we need inquire no further." State v. Kozlowski, 199 Conn. 667, 674, 509 A.2d 20 (1986); see also 2A J. Sutherland, Statutory Construction (4th Ed. Sands 1984) § 48.01. The words of the statute are to be given "their ordinary meaning unless their context dictates otherwise." Nichols v. Warren, 209 Conn. 191, 196, 550 A.2d 309 (1988). "Any latent ambiguity in the statutory language itself is normally resolved by turning for guidance to the legislative history and the purpose the statute is to serve." Capalbo v. Planning & Zoning Board of Appeals, 208 Conn. 480, 486, 547 A.2d 528 (1988); State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988). Further, "[p]enal statutes are to be construed strictly ... and not extended by implication to create liability that the legislature did not purport to create." State v. Hufford, 205 Conn. 386, 392, 533 A.2d 866 (1987); see State v. Dupree, 196 Conn. 655, 660, 495 A.2d 691, cert. denied, 474 U.S. 951, 106 S.Ct. 318, 88 L.Ed.2d 301 (1985); State v. DeMartin, 171 Conn. 524, 544, 370 A.2d 1038 (1976).

Section 53a-48(a) states that a person is guilty of conspiracy if he "agrees with one or more persons to engage in or cause the performance of [conduct constituting a crime]." The dispositive issue, therefore, is the meaning to be attributed to the word "agree" as used in § 53a-48. "Agree" is defined by Black's Law Dictionary (5th Ed.1979) as: "To concur; come into harmony; give mutual assent; unite in mental action; exchange promises; make an agreement; arrange; to settle," and by Webster's New Collegiate Dictionary (1974) as "admit, concede; to settle upon by common consent." That ordinary meaning supports the defendant's contention that the statute contemplates a criminal intent on the part of those with whom the defendant is alleged to have conspired.

The state maintains, however, that we should not give "agree" its ordinary meaning, but should instead interpret it to include situations in which only one party actually intends that the illegal activity occur. The state urges this construction on the ground that our legislature modeled § 53a-48 upon the New York conspiracy statute, N.Y. Penal Law § 105, which the courts of New York have interpreted as encompassing a unilateral conspiracy theory. People v. Schwimmer, 66 App.Div.2d 91, 411 N.Y.S.2d 922 (1978), aff'd, 47 N.Y.2d 1004, 420 N.Y.S.2d 218, 394 N.E.2d 288 (1979). Although much of the language of the New York and Connecticut statutes is virtually identical, ² the New York statute contains a section, not contained in the Connecticut statute, that specifically states that it is not a defense to a conspiracy charge that the defendant's coconspirator lacked the mental state necessary to himself be guilty of conspiracy. ³ In light of this significant difference between New York's governing statute and § 53a-48, we conclude that New York cases do not establish reliable precedents for the construction of our statute.

In describing the constituent elements of conspiracy, our own cases have regularly described conspiracy in bilateral terms. " ' "To establish the crime of conspiracy under [§ 53a-48], the state must show that there was an agreement between two or more persons to engage in conduct constituting a crime...." ' " State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. DeMatteo, 186 Conn. 696, 707, 443 A.2d 915 (1982); State v. Ortiz, 169 Conn. 642, 645, 363 A.2d 1091 (1975); see State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). " '[T]he essence of [conspiracy] is an agreement to commit an unlawful act.... The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object.' " State v. Beccia, supra, at 3, 505 A.2d 683, quoting United States v. Simms, 508 F.Supp. 1188, 1196 (W.D.La.1980).

A bilateral construction of our conspiracy statute finds support in similar decisions by the federal courts, which hold that one cannot conspire with an informant as a matter of law. Montgomery v. United States, 853 F.2d 83, 85 (2d Cir.1988); United States v. Escobar de Bright, 742 F.2d 1196, 1198-1200 (9th Cir.1984); ...