State v. Hart, 14230

• Decision Date: 07 April 1992
• Docket Number: No. 14230,14230
• Citation: 221 Conn. 595,605 A.2d 1366
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Veronica HART.

Page 1366

605 A.2d 1366

221 Conn. 595

STATE of Connecticut v.Veronica HART.

No. 14230.

Supreme Court of Connecticut.

Argued Oct. 2, 1991.

Decided April 7, 1992.

Rita M. Shair, Asst. State's Atty., with whom were John H. Malone, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., and Brian Hershman, Law Student Intern, for appellant(State).

Temmy Ann Pieszak, Asst. Public Defender, with whom were Susan Brown, Asst. Public Defender, and G. Douglas Nash, Public Defender, for appellee(defendant).

Before PETERS, C.J., and CALLAHAN, GLASS, BORDEN and BERDON, JJ.

CALLAHAN, Associate Justice.

The dispositive issue in this appeal is who has the burden of proof on the issue of drug dependency in a case charging sale of a narcotic substance by a person who is not drug-dependent.

The defendant, Veronica Hart, was charged in a four count information with: (1) sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278(b)¹; (2) sale of a narcotic substance in violation of General Statutes § 21a-277(a)²; (3) conspiracy to sell a narcotic substance in violation of General Statutes §§ 21a-277(a)and53a-48(a)³; and (4) possession of a narcotic substance in violation of General Statutes § 21a-279(a).⁴The defendant was tried jointly with another accused, John Cavanaugh.Following her conviction by a jury of all of the above counts, the defendant appealed to the Appellate Court.In State v. Hart, 23 Conn.App. 746, 585 A.2d 103(1991), the Appellate Court reversed her conviction of sale of narcotics by a person who is not drug-dependent because it concluded that the state failed to prove beyond a reasonable doubt that the defendant was not drug-dependent, and that the trial court improperly allowed the jury to determine whether the issue of drug dependency had been raised.

We granted the state's petition for certification to appeal from the decision of the Appellate Court;State v. Hart, 217 Conn. 811-12, 587 A.2d 152(1991); limited to the following three questions: "1.Did the Appellate Court correctly rule that the state may not satisfy its burden of proving the defendant is not drug-dependent by destroying the credibility of defense witnesses, even though drug dependency is not an element of General Statutes § 21a-278b?2.Was the Appellate Court correct in not considering facts elicited by the state during cross-examination when it determined there was insufficient evidence of non-drug dependency?3.Did the Appellate Court correctly conclude that the trial court's instructions were erroneous because it instructed the jury to determine whether the defendant's evidence of drug dependency was credible?"⁵We conclude that the Appellate Court incorrectly ruled on the first and second certified questions, and improperly ordered the trial court to acquit the defendant of a violation of § 21a-278(b).

The opinion of the Appellate Court accurately reports the relevant facts.State v. Hart, supra, 23 Conn.App. at 748, 585 A.2d 103.For the purposes of this case, we note the following.Stephen Cahill and Paul Vanderheiden were police officers affiliated with the statewide narcotics task force.On the evening of October 23, 1986, Cahill and Vanderheiden traveled to the 190 East Cafe in Enfield where they had been assigned to complete an undercover narcotics enforcement operation.Upon his arrival at the bar, Cahill made it known to various persons that he was interested in purchasing narcotics.While Cahill was seated in a corner of the bar, the defendant approached him and stated that she had heard that he was interested in purchasing some cocaine.The defendant told Cahill that if he would give her $50 she would obtain a gram of cocaine from Cavanaugh, a bouncer at the bar, which she would divide with Cahill.After Cahill gave the defendant the money, she approached Cavanaugh and transferred the money to him.In return, Cavanaugh gave the defendant a packet containing approximately one gram of cocaine.She then returned to Cahill, and the two left the bar and divided the cocaine in Cahill's car.

The jury also heard evidence indicating that the defendant was drug-dependent at the time of the charged offenses.Joni Zarcaro testified that she had known the defendant at the time of the charged offenses, and that she had witnessed the defendant use cocaine two or three times a week.Elizabeth Ann Donahue stated that she also knew the defendant at the time of the charged offenses and that for as long as she had known her, the defendant had admitted that she had a drug problem.Donahue testified that she had advised the defendant to seek drug treatment, but was not aware that the defendant had ever done so, and she believed that the defendant still had a drug problem at the time of trial.David Lombardi also testified that he had known the defendant at the time of the charged offenses.Lombardi stated that when he was with the defendant and drugs were available, which was "pretty much all the time,"the defendant would invariably try to acquire the drugs.He testified that he had observed the defendant use both cocaine and marihuana, and that he had personally used cocaine with the defendant five hundred times over the four or five years he had known her.Lombardi testified that, in 1986 and 1987, the defendant had sometimes complained that she could not go to work because of drug use, and he had heard her say that she"needed cocaine."Lombardi testified that he had seen the defendant in bars, in malls and around town when she appeared to be intoxicated, either on drugs or alcohol.

Further, Lawrence Weiner, a psychiatrist, testified as an expert witness.He stated that he had met with the defendant in November, 1988, and completed a drug dependency evaluation of her at that time.He testified that the defendant had told him that, at the time of the charged offenses, she was using cocaine intranasally.Weiner also testified that the defendant told him that she began using cocaine on a daily basis in late 1987, and that, from that time forward, she spent $50 a day on cocaine.Weiner stated that the defendant told him that she used all the money she had remaining after buying food and paying rent to purchase cocaine.He also testified that the defendant had told him that in 1987 and 1988, she suffered from symptoms of cocaine withdrawal, including a craving for cocaine, and depression.He additionally stated that the defendant had reported to him that she had tried to stop using cocaine, but had not been successful.Weiner concluded that the defendant had used cocaine episodically prior to November, 1987.Weiner testified that, as a result of the evaluation, he diagnosed the defendant as having a dependence on both cocaine and alcohol at the time the charged offenses were committed.

The state conducted cross-examination of all of the above witnesses.Zarcaro admitted that she had seen the defendant many times inside bars, sometimes for four hours or more, but that she had never actually observed the defendant using drugs.Similarly, Donahue stated that she had never actually been in the presence of the defendant when the defendant was using drugs.Lombardi also stated that he saw the defendant in bars three or four times a week in the fall of 1986.He testified that, although he had seen the defendant at the 190 East Cafe for periods of up to eight hours, he had never actually witnessed her use drugs in the bar.Further, Lombardi stated that when the defendant had come to his house to use drugs, she would sometimes share her cocaine with other people.Lombardi stated that the most cocaine he had ever seen the defendant bring was about one-half gram, although she might actually have had more that he did not see.Lombardi also stated that, at the time of the charged offenses, the defendant was steadily employed, although there were days when she could not go to work because of drug use.Lombardi further admitted that he had seen the defendant stay in bars for six to eight hours and never heard her say that she needed cocaine.

In the course of the state's cross-examination, Weiner admitted that all of his findings were based upon a forty-five minute interview with the defendant in 1988, two years after the charged offenses had allegedly occurred.Weiner conceded that he had failed to perform a physical examination of the defendant and that, although he concluded that the defendant used cocaine intranasally, which could cause physical damage to the nose, he had never examined the defendant's nose to determine whether there was any indication of cocaine use.Weiner also testified that the defendant had stated to him that she had only occasionally used cocaine, once or twice a week, at the time of the charged offenses, and did not begin using cocaine daily until late in 1987.Weiner stated that he recalled that the defendant had told him that she was always able to hold a job.Finally, Weiner admitted that his evaluation of the defendant and his conclusions about her drug use were based solely on information he had obtained from her.

I

We first address the state's claim that the Appellate Court incorrectly ruled that the state failed to disprove drug dependency beyond a reasonable doubt.The state claims that the Appellate Court improperly failed to consider facts elicited by the state on cross-examination, ⁶ and improperly held that the state may not satisfy its burden solely by discrediting the defendant's evidence.The state claims that its cross-examination proved beyond a reasonable doubt that the defendant was not drug-dependent.We disagree.

At trial, as noted, the defendant offered testimony through Zarcaro, Donahue, Lombardi and Weiner indicating that she was drug-dependent at the time of the charged offenses.⁷The state cross-examined all of the defense witnesses.The trial court, in its charge, informed the jury that it could...