State v. King

• Decision Date: 18 November 2008
• Docket Number: No. 18093.,18093.
• Citation: 958 A.2d 731,289 Conn. 496
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Tyrone KING.

958 A.2d 731

289 Conn. 496

STATE of Connecticut v. Tyrone KING.

No. 18093.

Supreme Court of Connecticut.

Argued April 14, 2008.

Decided November 18, 2008.

Elizabeth Kozlowski, certified legal intern, with whom were Timothy H. Everett, special public defender, and, on the brief, Thomas Feazell, Nicholas Mindicino, Keisha Palmer, John O'Donnell and Reagan Clyne, certified legal interns, for the appellant (defendant).

Melissa Patterson, deputy assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Donal Collimore, Jr., assistant state's attorney, for the appellee (state).

ROGERS, C.J., and NORCOTT, KATZ, PALMER and SCHALLER, Js.

SCHALLER, J.

The defendant, Tyrone King, appeals¹ from the judgment of conviction, rendered after a jury trial, of sale of narcotics in violation of General Statutes § 21a-277 (a),² and sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b).³ The defendant raises four claims on appeal: (1) the trial court improperly failed to instruct the jury on the defense of entrapment; (2) the trial court improperly instructed the jury that the defendant could be convicted either as an accessory or as a principal; (3) the prosecutor engaged in certain improprieties that deprived the defendant of a fair trial; and (4) there was insufficient evidence to support the defendant's conviction of selling narcotics within 1500 feet of a school because the state offered no proof that the building alleged to be a school was an operating "public or private elementary or secondary school" as required by § 21a-278a (b). We affirm the judgment of conviction.

The jury reasonably could have found the following facts. On the night of June 28, 2004, the tactical narcotics team (team) of the Bridgeport police department initiated a narcotics investigation in the area of Washington Avenue and Sanford Place in Bridgeport. The team targeted the area for investigation because it was considered a "high drug area" in which narcotics officers previously had made numerous drug related arrests. Clive Higgins, an undercover officer assigned to the team, testified that his role in the investigation was to purchase drugs. Higgins was equipped with a listening device that enabled other team members to monitor his activity.

At approximately 10 p.m., Higgins approached the defendant, who was located on the corner of Washington Avenue and Sanford Place, and asked where he could "get some ... slabs." Higgins explained to the jury that a slab is a "ziplocked [bag] containing narcotics or cocaine." The defendant then told Higgins, "I'll take you to my man," and asked Higgins how many slabs he wanted. After Higgins requested two slabs, he accompanied the defendant to a building located at 40 Sanford Place.

William Reilly, the officer who was assigned to watch Higgins and to monitor his conversations by way of the listening device, saw Higgins and the defendant enter the building and he heard "footsteps going up stairs." Higgins and the defendant proceeded to the fourth floor of the building, where the defendant knocked on the only door without an apartment number. When the occupant of the apartment opened the door, the defendant instructed Higgins to give the defendant money. Higgins handed the defendant a marked $20 bill, after which the defendant entered the apartment alone and closed the door. While the defendant was in the apartment, Higgins used the listening device to transmit information about his location to other officers on the team. A few seconds later, the defendant exited the apartment and handed Higgins two clear ziplock bags containing a white substance. Reilly saw Higgins and the defendant leave 40 Sanford Place together, and Higgins then signaled to Reilly that he was in possession of drugs.

Orlando Rosado, another officer on the team, subsequently arrested the defendant, and he retrieved a crack pipe from the defendant when the defendant was brought to police headquarters. The white substance that the defendant handed to Higgins proved to be 0.143 grams of crack cocaine.

After his arrest, the defendant was charged in a long form information with sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b), sale of narcotics in violation of § 21a-277 (a), and sale of narcotics within 1500 feet of a school in violation of § 21a-278a (b). As an affirmative defense, the defendant claimed that he was drug-dependent at the time of the crime, and he called an expert witness, Guay Chatfield, a licensed clinical social worker, to substantiate that defense. On December 15, 2004, the jury rendered a verdict acquitting the defendant of the count alleging sale of narcotics by a person who is not drug-dependent and finding him guilty of the remaining two charges. The trial court rendered a judgment of conviction as to those charges, from which the defendant appealed. We address the defendant's four claims in turn.

I

The defendant first claims that he was deprived of a fair trial by the trial court's failure to instruct the jury on the defense of entrapment. See General Statutes § 53a-15.⁴ He claims that his testimony gave rise to a defense of entrapment, thereby necessitating an instruction. The defendant claims that several key differences between his testimony and Higgins' testimony, "supported the conclusion that the defendant ... was induced to join [Higgins] (`a feigned accomplice') in a search for someone from whom to purchase ... crack." Specifically, he relies on his testimony, in contrast to Higgins' testimony, that Higgins approached the defendant and promised to get him high, that the defendant did not know the person from whom they purchased crack, and that the defendant never touched the money or the drugs in question.⁵

As a preliminary matter, we address the state's claim that the defendant failed to preserve his claim for appellate review. The defendant acknowledges that he failed to request an instruction on entrapment or to take exception to the omission of an entrapment instruction from the trial court's jury charge as required by Practice Book § 42-16,⁶ but he seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

"Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Internal quotation marks omitted.) State v. Fauci, 282 Conn. 23, 33 n. 5, 917 A.2d 978 (2007). Should the defendant fail to meet any of these four conditions, "an appellate court is free to reject a defendant's unpreserved claim...." (Internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 580, 916 A.2d 767 (2007).

Although the record is adequate for review in this case, this court consistently has concluded that "the defense of entrapment is not of constitutional dimension." (Internal quotation marks omitted.) State v. Grullon, 212 Conn. 195, 211, 562 A.2d 481 (1989). In both Grullon, and State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985), we declined to review the defendants' unpreserved claims pertaining to the trial court's charge on the defense of entrapment because the defense was not of constitutional magnitude. See also State v. Preyer, 198 Conn. 190, 197, 502 A.2d 858 (1985). Despite this clear precedent, the defendant urges us to conclude that the defense of entrapment is of constitutional magnitude on the ground that it is analogous to the defense of duress. The defendant offers no persuasive authority, however, to indicate why we should ignore well established precedent to the contrary. Accordingly, we decline to review the defendant's unpreserved claim because he has failed to satisfy the second prong of Golding.

II

The defendant next claims that the trial court improperly instructed the jury on accessorial liability because: (1) the evidence in the state's case did not support such an instruction; and (2) the court failed to inform the jury that it could not convict the defendant of the offenses charged on the ground that he was Higgins' accomplice because Higgins, as an undercover police officer, was not an actual principal. See State v. Montanez, 277 Conn. 735, 756, 894 A.2d 928 (2006) ("another person's commission of an offense is a condition precedent to the imposition of accessorial liability").

The following additional facts and procedural history are relevant to our resolution of this claim. On the first day of trial, the state filed a preliminary request to charge the jury on accessorial liability pursuant to General Statutes § 53a-8.⁷ Defense counsel, at that time, indicated that she was planning to object to that portion of the charge after she had an opportunity to review it. After the close of evidence, the trial court indicated on the record that a charging conference had been held during which the court had stated that it would be instructing the jury on accessorial liability and defense counsel had voiced her intention to object to the charge. Defense counsel subsequently clarified that she was objecting to the prospective charge on the ground that an instruction on accessorial liability would confuse the jury because the state had charged the defendant as a principal, not as an accessory, and the state had not named any other party who could be considered a principal.⁸ After the trial court instructed the jury and asked whether counsel had any exceptions to the charge, defense counsel merely indicated, "I believe I've placed my...