State v. Harvey

• Decision Date: 21 May 1992
• Docket Number: No. 9654,9654
• Citation: 27 Conn.App. 171,605 A.2d 563
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Lesburn HARVEY.

Page 563

605 A.2d 563

27 Conn.App. 171

STATE of Connecticut v. Lesburn HARVEY.

No. 9654.

Appellate Court of Connecticut.

Argued Dec. 10, 1991.

Decided March 24, 1992.

Certification Denied May 21, 1992.

[27 Conn.App. 172] Neal Cone, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Alfred C. Baldwin, Asst. State's Atty., for appellee (state).

Before DALY, NORCOTT and LANDAU, JJ.

LANDAU, Judge.

The defendant, Lesburn Harvey, appeals from a judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b) and possession of a controlled substance with intent to sell in violation of General Statutes § 21a-277(b). On appeal, the defendant raises the following claims: (1) the trial court improperly denied his motion for a mistrial after the state introduced inadmissible prejudicial evidence; (2) a pattern of conduct repeated throughout the course of the trial and the state's closing argument constituted prosecutorial misconduct that violated his right to a fair trial; (3) the trial court improperly permitted the arresting officer to testify as both a fact witness and an expert witness; and (4) the trial court improperly instructed the jury on expert testimony, on the presumption of innocence, and on reasonable doubt. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On August 22, 1989, at approximately 8:30 p.m., Detectives Anthony Battistone and Christopher Lyons of the Hartford police department received a telephone call from an unidentified informant indicating that an individual named Les, who was dressed all in white, was selling narcotics out of a parked car in the area of 139 Homestead Avenue in Hartford.

In response to the telephone call, plain clothes detectives in an unmarked car drove to the area indicated in the telephone call to conduct a surveillance. ¹

The officers observed four individuals attempting to wave down passing cars. They further observed the defendant, who was dressed all in white, enter an apparently abandoned black Volvo and remove small plastic packages from the backseat, hand the packages to various individuals, whom the other four had stopped, receive money in exchange, and place the money in his pocket. At this point, the officers arrested the defendant. A search of the vehicle produced eleven blue plastic bags containing a substance later identified as marihuana, and four clear plastic bags containing a white powder later identified as cocaine. A search of the defendant's person produced $561.

I

The defendant first claims that the trial court improperly denied his motion for a mistrial after the state introduced inadmissible prejudicial evidence. We disagree.

The following additional facts are necessary to resolve this claim. On the eve of trial, the defendant filed a motion in limine requesting a ruling by the court regarding the admissibility of the contents of a telephone call to the police in which an unidentified informant related that an individual named Les, dressed all in white, was selling narcotics out of a parked car in the area of 139 Homestead Avenue in Hartford. The defendant, relying on State v. Milner, 206 Conn. 512, 539 A.2d 80, 539 A.2d 80 (1988), ² sought to preclude the state from "mentioning or stating what information was received from an alleged informant ... until the court has ruled on the admissibility of said information." He argued that the information was hearsay that did not fall within any recognized exception to the hearsay rule. The trial court entered an order that "no evidence concerning information received from an informant may be intentionally introduced unless prior to the presentation of such evidence, the state, outside the presence of the jury, gives oral notice to the trial judge of his intention to present such evidence before the jury." ³

Prior to calling its first witness, the state, pursuant to the trial court's order, informed the court that it would be questioning the witness regarding the telephone call placed by the unidentified informant. The state's attorney argued, relying on State v. Cruz, 212 Conn. 351, 356, 562 A.2d 1071 (1989), that he was attempting to introduce evidence of the telephone call to show its effect on the listener and to explain the listener's subsequent conduct, not for the truth of the statement contained therein. ⁴ The defendant argued that because the essence of his defense was that he was not selling narcotics, the statement was being offered for the truth of the matter asserted and, therefore, was inadmissible hearsay.

The trial court, here, concluded that the statement was permitted in State v. Cruz, supra, for the limited purpose of explaining the witnesses' actions and noted that the Cruz court determined that if the witnesses had been permitted to testify to the specific contents of the statement, the testimony would have been inadmissible. Id., at 357, 562 A.2d 1071. The court also noted that in Cruz no testimony was elicited as to anything the defendant did or was accused of doing, but that here the contents of the telephone call, if admitted, would describe specifically that which was The trial court relied on this distinction in denying the state's request to introduce the contents of the telephone call. The trial court, however, reaffirmed its earlier decision and allowed the state to introduce the fact that "there was information received from unidentified informants that led them to a particular place because of some type of activity which was going on there."

precluded in Cruz, the particular conduct of the defendant.

On direct examination, the state established that Lyons had received a telephone call regarding some illegal activity and had gone to 139 Homestead Avenue to perform a surveillance in response to that telephone call. Shortly thereafter, the witness was asked why he went to 139 Homestead Avenue. He responded that he "was there to check out information [he] had received concerning a specific person who was selling narcotics from a parked vehicle." No objection was made to this question nor did the defendant move to strike the response. The witness was asked numerous foundational questions concerning his familiarity with the area around 139 Homestead Avenue. The state then asked him to describe the individuals he saw during the course of his surveillance. The witness briefly described the activity of four individuals and then stated that he was "focused on the person [he] had received information on." The state's attorney then cautioned the witness not to testify as to the contents of the telephone call. At this point, defense counsel objected to the testimony and requested argument outside the presence of the jury.

Defense counsel moved to dismiss the charges against the defendant or, in the alternative, for a mistrial on the ground that the state had violated the trial court's order regarding the introduction of the contents of the telephone conversation. The trial court denied the defendant's motion. With respect to the first reference, the trial court noted that it came in without objection; with respect to the second, the court did not find "that the comments to which the objections were made was sufficiently specific with regard to the telephone call to be violative of either the words or the spirit of the court's order." The trial court did, however, instruct the jury to disregard the testimony relating to the telephone call.

We will not review the defendant's claim as it relates to the witness' comment regarding a specific person selling narcotics from a parked vehicle because the defendant has failed to preserve this claim properly for appellate review. Absent a timely objection, this claim is not reviewable. State v. Anderson, 212 Conn. 31, 41, 561 A.2d 897 (1989); State v. Plourde, 208 Conn. 455, 462, 545 A.2d 1071 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989). Only the most exceptional circumstances will save a claim from the fatal consequences of a defendant's failure to make a timely objection. State v. Reddick, 197 Conn. 115, 125, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S.Ct. 822, 88 L.Ed.2d 795 (1986). The defendant has suggested no exceptional circumstances to warrant departure from the general rule that limits appellate review of all issues to those on which the trial court has had an opportunity to rule. Knight v. Bourbeau, 194 Conn. 702, 704 n. 3, 485 A.2d 919 (1984). The second claim, addressing Lyons' comment that he was "focused on the person [he] had received information on" was properly preserved by the defendant's timely objection and subsequent exception.

Due process requires that a criminal defendant be given a fair trial before an impartial jury. U.S. Const., amend XIV; Conn. Const., art. 1, § 8. State v. Brigandi, 186 Conn. 521, 542, 442 A.2d 927 (1982). A new trial, however, is not required every time " 'a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' " Rushen v. Spain, 464 U.S. 114, 118, 104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983), quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has The trial court is well aware of the scope of its orders. We, therefore, must afford great deference to its conclusion that the state did not violate either the words or spirit of those orders. Moreover, even though the...