State v. Kiser

• Decision Date: 01 October 1996
• Docket Number: No. 15042,15042
• Citation: 43 Conn.App. 339,683 A.2d 1021
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kicky KISER.

Page 1021

683 A.2d 1021

43 Conn.App. 339

STATE of Connecticut v. Kicky KISER.

No. 15042.

Appellate Court of Connecticut.

Argued April 30, 1996.

Decided Oct. 1, 1996.

Jeremiah Donovan, Special Public Defender, with whom, on the brief, were Terry Donovan, Special Public Defender, and Alix Biel, Law Student Intern, for appellant (defendant).

Peter A. McShane, Assistant State's Attorney, with whom, on the brief, was Kevin T. Kane, State's Attorney, for appellee (State).

Before DUPONT, C.J., and HEIMAN and SHEA, JJ.

HEIMAN, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b), ¹ possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), ² and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). ³ The jury acquitted the defendant of a fourth charge of possession of marijuana. On appeal, the defendant claims that the trial court improperly (1) refused to order the state to disclose the identity of certain confidential police informants and declined to conduct an in camera examination of those informants, (2) refused to deliver a cautionary instruction concerning a comment made by the state's attorney relating to the defendant's postarrest silence, a comment that the defendant claims violated her due process right to a fair trial, (3) refused to instruct the jury concerning the statutory definitions of "narcotic substance" and "controlled substance," thereby depriving the defendant of her constitutional right to have the jury determine whether the state had satisfied its burden of proof with respect to each element of the offenses charged, (4) prohibited the defendant from testifying that, prior to her arrest in this case, she had never been arrested for or convicted of a crime, and (5) excluded evidence that another individual had entered a guilty plea and was awaiting sentencing for possession with intent to sell the same cocaine that was the subject of the defendant's case. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 27, 1994, the defendant was sharing an apartment at 37-A Lake Street in Norwich with Lisa Wosston and Wosston's two children. The defendant and Wosston had been sharing the apartment for approximately two months and were its only adult occupants. During the time that Wosston and the defendant shared the apartment, people were constantly entering and shortly thereafter leaving the apartment. The Norwich police department conducted a surveillance of the apartment over a two or three day period prior to September 27, 1994, and observed the constant flow of people at the apartment.

On September 27, 1994, the defendant and Nathaniel Charles arrived at the apartment together and went directly into the defendant's bedroom. At approximately 7:19 p.m., members of the statewide narcotics task force, with members of the Norwich police department, executed a search and seizure warrant at 37-A Lake Street. The warrant authorized the search of the premises as well as a search of the persons of the defendant and Wosston.

The police entered the apartment through an unlocked door that led into the kitchen. A closed door that led into a bedroom was forced open by Officer Mark Rankowitz of the Norwich police department. Rankowitz entered the bedroom followed by Officers John A. John and Christopher Ferace.

The defendant and Charles were lying on a mattress on the floor of the bedroom. Charles was holding a razor blade in his hand and was in cutting a substance on a cutting board that was resting on a small strongbox on the floor. The defendant was holding a plastic bag containing a substance, and she dropped the bag as the police entered the bedroom. The defendant and Charles were handcuffed and placed under arrest.

The police confiscated the cutting board and a white rock-like substance that was on the board. The police also seized fifteen clear plastic bags containing a beige rock-like substance. The strongbox contained a clear plastic bag containing a number of rock-like pieces individually packaged in plastic wrap.

The rock-like material confiscated at 37-A Lake Street was cocaine in freebase form, otherwise known as crack cocaine, and weighed 37.75 grams, representing approximately 180 individual dosage units. Cocaine in freebase form is not water soluble and when heated becomes a vapor smoke that is inhaled into the lungs.

The police also confiscated empty plastic bags and packaging materials that were next to the strongbox, a loaded .40 caliber Glock semiautomatic handgun from the strongbox, and a beeper. No materials indicating the use of cocaine such as pipes or other implements were found on the premises.

The quantity of drugs was consistent with an amount held for sale and inconsistent with an amount held for personal use. The presence of the beeper indicated that the drugs were being sold from the premises because drug dealers make use of beepers as a method of communication. The individually wrapped packages of cocaine and the presence of packaging material were also consistent with the preparation of drugs for sale. The lack of smoking devices on the premises indicated that the drugs were not for personal use. The manner in which the chips of crack cocaine were removed from the bulk product with a razor blade and packaged in the ends of clear plastic bags was consistent with practices of a freebase cocaine dealer.

The defendant's apartment at 37-A Lake Street in Norwich is 1370 feet from the property line of St. Joseph's School. The distance from the most remote corner of the apartment building to the property line of the school is 1410 feet.

At trial, the defendant testified in her own behalf. She asserted that Wosston had invited her to be her roommate and that she moved into 37-A Lake Street toward the end of July, 1994. The defendant claimed that she met Charles in June, 1994, and that he became her boyfriend in August, 1994. She claimed that sometime between September 7 and September 10, 1994, Charles brought drugs into the apartment at 37-A Lake Street. The defendant asserted that she ordered Charles to remove his drugs from the apartment and that Charles became angry and left the apartment. The defendant claimed that Charles brought drugs into the apartment on a second occasion and that when she told him to remove the drugs, he again became angry.

The defendant testified that on September 17, 1994, Charles came to the apartment with a small safe and asked if he could leave the safe, which contained "work," in the apartment. The defendant testified that the term "work" means narcotics. The defendant claimed that when she told Charles that he could not store the material with her, Charles became enraged, slapped her face and left with the safe.

The defendant asserted that she did not speak with Charles between the day that he struck her and the day that they were arrested in the defendant's bedroom. She claimed that on September 25, 1994, she observed Charles at the corner of Lake and Boswell Streets, but did not speak with him.

The defendant testified that on September 27, 1994, Charles called her at home and asked if he could come over to see her. She testified that she told Charles he could visit and she then went to take a shower. The defendant claimed that when she came out of the shower and went into the bedroom, Charles was in the room sitting on the edge of the bed cutting up drugs. She testified that she told Charles to take his drugs and to leave, but, at that point, the police entered the bedroom. The defendant claimed that when the police entered her apartment, she was walking past Charles and toward the bed. The defendant asserted that when the police entered her bedroom, she jumped onto the bed and began jumping up and down and screaming. She claimed that when the police entered the room, she had a towel in her hand that she promptly dropped. The defendant testified that she was not lying on the mattress next to Charles when the police entered the room, was not holding a plastic bag and was not in possession of the cocaine with the intent to sell it.

I

The defendant first claims that the trial court improperly refused to order the state to disclose the identity of two confidential informants who had supplied information to the police that was used in establishing probable cause for the issuance of the search and seizure warrant. The defendant posits that the trial court's refusal was improper because the informants "had placed the responsibility for dealing in cocaine upon one of the state's crucial witnesses," namely, Wosston. The defendant also asserts that the trial court improperly declined "to conduct an in camera examination of those informants in order to determine the extent to which their observations were exculpatory." We are not persuaded.

The following additional information is necessary to our resolution of this claim. In their application for the search and seizure warrant, the police stated that two confidential informants, A and B, had informed the police that drug related activity was taking place at 37-A Lake Street. Informant A told the police that a crack cocaine operation was based at the apartment. Informant A also told the police that a supply of crack cocaine was being kept inside the apartment and that "two females," including "Lisa," were selling the cocaine in front of the apartment. Informant A participated in a controlled purchase of crack cocaine from an unknown male who was selling the cocaine for "Lisa" outside the apartment. Informant B also revealed that a crack cocaine operation was based at 37-A Lake Street. Informant B participated in a controlled purchase of crack cocaine from a female named "Kiki,"...