State v. Hart

• Citation: 23 Conn.App. 746,585 A.2d 103
• Decision Date: 15 January 1991
• Docket Number: No. 7913,7913
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Veronica HART.

Page 103

585 A.2d 103

23 Conn.App. 746

STATE of Connecticut v. Veronica HART.

No. 7913.

Appellate Court of Connecticut.

Argued Oct. 4, 1990.

Decided Jan. 15, 1991.

Susan Brown, Asst. Public Defender, for appellant (defendant).

Rita M. Shair, Deputy Asst. State's Atty., with whom were John M. Bailey, State's Atty., and, on the brief, John Malone, Asst. State's Atty., for appellee (State).

Before SPALLONE, NORCOTT and LANDAU, JJ.

SPALLONE, Judge.

The defendant appeals from the judgment of conviction rendered after a jury found her guilty of the crimes of sale of a narcotic substance by a person who was not drug-dependent in violation of General Statutes § 21a-278(b), sale of a narcotic substance in violation of General Statutes § 21a-277(a), conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48(a) and 21a-277(a), and possession of a narcotic substance in violation of General Statutes § 21a-279(a). On appeal, the defendant claims that the trial court (1) improperly denied her motion in limine that proposed to limit the defendant's testimony, and the cross-examination of her, to the subject of drug dependency, (2) improperly denied her motion to dismiss the information against her because of prearrest delay, (3) improperly instructed the jury regarding the initial finding of drug dependency, (4) improperly instructed the jury that it could find that the state had sustained its burden of proving that the defendant was not drug-dependent, and (5) improperly sentenced the defendant in violation of her right against double jeopardy. ¹ We affirm the trial court's judgment in part and reverse it in part.

The jury could reasonably have found the following facts. The defendant, Veronica Hart, was a regular patron of 190 East, a bar located in Enfield and known to the local police for extensive drug trafficking. On October 23, 1986, as part of an undercover operation, officers Steven Cahill and Paul Vanderheiden, members of the statewide narcotics task force, entered the bar. After Cahill had spread the word that he was interested in buying drugs, the defendant approached him and told him that she had heard that he wanted to buy some cocaine. The defendant told Cahill that she wanted to split a gram of cocaine with him and asked him for $50 in advance. The defendant told Cahill that she was getting the cocaine from "John," gesturing toward John Cavanaugh, a bouncer at the bar. As soon as Cahill gave the defendant the cash, she approached Cavanaugh and gave it to him. Cavanaugh pocketed the money and handed her a packet containing cocaine. The defendant walked directly back to Cahill, and the two of them went out to his car, split the contents of the package into two packages, took one each, and reentered the bar.

On May 3, 1988, the defendant was arrested. Before the beginning of the trial, the defendant moved to dismiss the case due to the delay between the date of the alleged activities and the date of the arrest. The trial court denied this motion. During trial, the defendant made an oral motion in limine seeking a ruling from the court that, if the defendant chose to testify, "her testimony be limited as such to only the issue of dependency and to nothing else in this case." The court also denied this motion.

At the end of the trial, and after deliberation, the jury returned a verdict finding the defendant guilty on each count charged in the information. The defendant was sentenced on March 12, 1989, for a total effective sentence of eight years, execution suspended after five years, with three years probation.

I

The defendant's first claim is that the trial court improperly denied her motion in limine proposing to limit the defendant's testimony, and the cross-examination of her, to the subject of drug dependency. Specifically, the defendant asked the trial court to rule that, if the defendant chose to testify, "her testimony be limited as such to only the issue of dependency and to nothing else in the case." Defense counsel represented that it was her intention, on direct examination of the defendant, not to ask any questions pertaining to the offense charged or the events occurring on the evening of the sale, but to limit the scope of direct examination to the issue of drug dependency. In her brief, the defendant asserts that she was seeking a ruling that would ensure that if she chose to testify, and limited her testimony to the issue of drug dependency, the state would not be allowed to cross-examine her beyond the scope of that proposed direct examination. The trial court denied the defendant's motion and the defendant elected not to testify.

We conclude that the trial court properly rejected the defendant's motion because the procedure employed by the defendant, namely, a motion in limine, is an inappropriate vehicle to raise and preserve a challenge to potential cross-examination as being outside of the scope of the defendant's hypothetical direct examination. State v. Tirado, 21 Conn.App. 449, 454, 574 A.2d 252 (1990); State v. Scott, 11 Conn.App. 102, 105, 525 A.2d 1364 (1987), cert. denied, 204 Conn. 811, 528 A.2d 1157 (1987). We have no way of knowing, nor could the trial court have known, what the scope of the defendant's direct examination would have been if she had chosen to testify, whether the state would have chosen to cross-examine the defendant or what the scope of that hypothetical cross-examination would have been. Only a complete record detailing the nature of the defendant's testimony and the scope of the direct examination permits proper appellate determination of whether a trial court improperly permitted a particular question or line of inquiry. State v. Scott, supra, 11 Conn.App. at 107, 525 A.2d 1364. "In the absence of both the direct and cross-examination, we have no basis on which to review this claim." State v. Tirado, supra, 21 Conn.App. at 454, 574 A.2d 252.

II

The defendant's second claim is that the trial court improperly denied her motion to dismiss the information against her because of prearrest delay. Specifically, the defendant argues that the eighteen month time period between the date of the offenses and her arrest violated her due process rights because she was unable to present a completely adequate defense and because there was no justification for the delay. We disagree.

The primary protection afforded an accused from delay in arrest rests not in the due process clause but in the statute of limitations. State v. Echols, 170 Conn. 11, 17-18, 364 A.2d 225 (1975). The defendant must show more than a mere delay, however, between the offense and the arrest to establish an unconstitutional prearrest delay. "In order to establish a due process violation because of prearrest delay, the defendant must show both that actual substantial prejudice resulted from the delay and that the delay was wholly unjustified, as where the state seeks to gain a tactical advantage over the defendant. State v. Littlejohn, 199 Conn. 631, 646, 508 A.2d 1376 (1986); State v. Haynes, 8 Conn.App. 361, 364, 513 A.2d 160 (1986)." State v. Hanna, 19 Conn.App. 277, 278, 562 A.2d 549 (1989).

The defendant claims that the presentation of her case was prejudiced by the state's cross-examination of Lawrence Weiner, a psychiatrist. Weiner had testified that he believed that the defendant was drug-dependent at the time of the offense. During cross-examination, the state questioned the reliability of Weiner's testimony because of the delay between the time of the offense and the time of Weiner's psychiatric examination of the defendant. The defendant further asserts that the delay was not justified because there was no ongoing investigation from the time of the incident to the time of the filing for the arrest warrant.

We conclude that the defendant was not substantially prejudiced by the delay. At a hearing on the defendant's motion to dismiss because of prearrest delay, Vanderheiden testified that the delay in applying for the defendant's arrest warrant existed in order to protect ongoing investigations in the Enfield area and was not occasioned to gain any tactical advantage over the defendant. Some delay between the time of the offense and the time of a psychiatric examination for the purpose of introducing evidence at trial is natural. Any further delay occasioned by the ongoing investigation in this case did not cause the defendant substantial prejudice. Accordingly, the trial court properly denied the defendant's motion to dismiss.

III

The defendant's third claim, raised for the first time on appeal, is that the trial court's instruction improperly permitted the jury, rather than the trial court, to determine whether the defendant had submitted some evidence of drug dependency and whether the state could rely on a presumption that she was not drug-dependent. We agree.

"While it is the general practice of this court not to review claims not distinctly raised at trial, we may, in the interests of justice, notice plain error not brought to the trial court's attention. Practice Book § 4185; State v. Phu Dinh Le, 17 Conn.App. 339, 342, 552 A.2d 448 (1989)." State v. Luca, 19 Conn.App. 668, 670, 563 A.2d 752 (1989). The error in this case caused a "manifest injustice under all the circumstances of the case"; State v. Hinckley, 198 Conn. 77, 87, 502 A.2d 388 (1985); because it affected the integrity or reliability of the jury's verdict. See State v. Luca, supra, 19 Conn.App. at 671, 563 A.2d 752. We will, therefore, review this claim.

Our cases make clear that "[i]n a prosecution under General Statutes § 21a-278(b), the state may initially rely on a presumption that the defendant is not drug-dependent." State v. McNeil, 21 Conn.App. 519, 520, 574 A.2d 1314 (1990); State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981). "This presumption evaporates when the defendant introduces...