State v. Lee

• Decision Date: 22 April 1993
• Docket Number: No. 10905,10905
• Citation: 30 Conn.App. 470,620 A.2d 1303
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut, v. Anna LEE.

Page 1303

620 A.2d 1303

30 Conn.App. 470

STATE of Connecticut, v. Anna LEE.

No. 10905.

Appellate Court of Connecticut.

Argued Dec. 3, 1992.

Decided March 2, 1993.

Certiorari granted limited to the following issue April 22, 1993.

Jeremiah Donovan, Sp. Public Defender, with whom, on the brief, was Terry Sablone Donovan, Sp. Public Defender, for appellant (defendant).

John A. East III, Deputy Asst. State's Atty., with whom, on the brief, were C. Robert Satti, Sr., State's Atty., and John P. Pannone, Asst. State's Atty., for appellee (state).

Before DALY, LAVERY and SCHALLER, JJ.

SCHALLER, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of criminal attempt to possess more than one kilogram of marihuana with intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 21a-278(b) and 53a-49(a)(2). The defendant claims that the trial court (1) improperly denied her motion to dismiss, (2) improperly (a) declined to order the state to disclose information concerning its informants, (b) precluded cross-examination concerning their activity and (c) declined to order the state to produce an informant for trial, (3) improperly declined to recognize the defense of "objective entrapment," (4) improperly foreclosed the defendant from inquiring into the potential bias of a witness, (5) improperly permitted testimony concerning firearms seized at the defendant's residence, (6) improperly refused to admit evidence pertaining to charges against the defendant that the state had dismissed, and (7) improperly restricted the defendant's inquiries into the attitudes of prospective jurors toward the defense of entrapment. We reverse the trial court's judgment and remand the case for a new trial.

The following facts are pertinent to the resolution of this appeal. ¹ At the time of trial, Anna Lee, the defendant, was fifty-five years old and had no criminal record. Her son, Mario, had been arrested in Fort Lauderdale, Florida, for conspiracy to possess cocaine. Although the Florida Appellate Court recently reversed his conviction; Krajewski v. State, 587 So.2d 1175 (Fla.Dist.Ct.App.1991); ² he was imprisoned in Florida prior to and during the incidents giving rise to the defendant's conviction. During Mario's imprisonment, the defendant received crudely written letters from other inmates, some threatening Mario's life. In addition, she sent money orders and other items to inmates for her son's protection. Her correspondence with her son and other inmates revealed her deep concern for Mario's well-being.

When calls and letters from Mario ceased, the defendant decided to travel to Florida. En route, the defendant learned that her son was in solitary confinement because of threats on his life by other inmates. Eventually, she met with her son who appeared to her to have "heat rashes on him."

Because of her concerns about the conditions of Mario's imprisonment, the defendant was determined to obtain the assistance of a private attorney to pursue Mario's appeal. She had already spent thousands of dollars on Mario's trial and was hesitant to draw further on her line of credit with Household Finance Company, especially since she and her husband had no promising job prospects. The defendant, at this point, had begun to deteriorate mentally and physically and would "break down constantly."

Against this background, the defendant became involved with persons purportedly interested in selling her large quantities of marihuana for resale. She first spoke with Augustus Buckley. ³ Buckley, an informant and Florida prison inmate, telephoned the defendant to discuss the possibility of the purchase and sale of fifty pounds of marihuana for $40,000 to be delivered to the defendant without an advance payment. Buckley further explained that he was a friend of Mario and that the defendant should try to get a private attorney to handle Mario's pending appeal. Buckley's wife also spoke with the defendant.

Buckley then informed Detective Daniel Losey of the Fort Lauderdale police department that the defendant was interested in purchasing marihuana for resale. Losey subsequently decided to contact the defendant. In his first telephone call to the defendant, on July 23, 1990, Losey explained that he was aware of her interest in purchasing marihuana. Before discussing the possibility of a sale, Losey suggested that they refer to the marihuana as "carpet" and its quantity, in pounds, as "feet." Contrary to the discussion between Buckley and the defendant, Losey explained that he typically would not sell less than 150 feet of carpet in a given deal and quoted a price of $1000 per foot. Further, Losey said that he would require the defendant to send him an advance payment of $3000. The defendant expressed reluctance to entertain the deal as proposed. She stated, "for the first time it's too big an amount." Losey then reduced the quantity proposed from 150 to 50 feet, but insisted on the advance payment and the originally quoted price. The defendant still declined to go ahead with the deal because of the advance payment requirement.

Losey telephoned the defendant the next day. The defendant again expressed her reluctance, citing the $3000 advance and the price of $1000 per foot. She did, however, state: "I wish, make this deal come true, make some money." The conversation concluded without any fixed arrangement.

Eight days later, on August 2, 1990, Losey again telephoned the defendant. In this conversation, Losey told the defendant that he would be willing to reduce the price from $1000 to $800 per pound. The defendant also testified that around this time Buckley had contacted her and urged her to accept the requirement that there be an advance payment, because the advance was going to be paid to his wife. According to the defendant, Buckley said, "I think your son's sentence will end very soon. We end his sentence very soon if you no go through with it."

On August 8, 1990, Losey telephoned the defendant. In this conversation, the defendant insisted that the deal would have to be "cash on delivery." Losey responded that he would be able to meet her demands in this respect since he was making a delivery in the area anyway. He further stated that he would call the defendant later.

A week later, Losey made yet another call to the defendant. The defendant explained to Losey that too much time had elapsed and that she did not want to buy marihuana from him. Through her correspondence with her son and Buckley, the defendant became skeptical about the relationship between Buckley and Losey, concerned that they might be attempting to "set her up." As she understood it, the "set up" would then result in a reduced sentence for Buckley. Losey dispelled her anxieties explaining that Buckley was probably "going crazy" in prison and that Buckley believed everyone was taking advantage of him. When Losey swore that he was not a police officer, the defendant then told him to deliver the marihuana to her.

Losey called the defendant the next day and asked if they could meet in Connecticut the following morning. Losey restated the deal as involving the sale of fifty pounds of marihuana for $40,000. The next day, August 17, Losey contacted the defendant and told her that he was staying at a motel in East Lyme. The defendant went to Losey's room. From that point on, a surveillance team closely monitored the activities of the defendant and Losey.

Losey and the defendant met in the motel room. From there, the two proceeded to a Household Finance Company office where the defendant drew a check from her line of credit. She showed the check to Losey, who was assured that it could be cashed at any bank. She was immediately arrested. That same day, the police obtained a warrant and searched the apartment of the defendant and her husband. The police found marihuana seeds, three small marihuana plants, scales commonly used for purposes that are not related to drugs, three hunting rifles and a handgun. ⁴

The defendant was brought to trial for attempted sale of marihuana in violation of General Statutes §§ 21a-278(b) and 53a-49(a)(2). She sought to establish a defense based on entrapment within the purview of General Statutes § 53a-15. ⁵ The jury, however, returned a verdict of guilty and judgment was rendered accordingly. This appeal followed.

I

Before reaching the dispositive issue, we first address the trial court's denial of the defendant's motion to dismiss. The defendant claims that the trial court improperly declined to apply Florida law in denying her motion to dismiss. In her view, because the investigative activities at issue in this case would warrant a dismissal in Florida the trial court should have dismissed the case. We are not persuaded.

We note that the defendant does not challenge this state's jurisdiction over the case. It is clear, in any event, that Connecticut is the proper forum in which to prosecute the defendant because the attempted drug transaction at issue was consummated in this state. A. Spinella, Connecticut Criminal Procedure (1985) § 3A. A finding that Connecticut has criminal jurisdiction over this case leads inescapably to the application of this state's criminal code. Indeed, both the charge of attempted distribution of drugs and the defense of entrapment are specifically embodied in our General Statutes. See General Statutes §§ 21a-278(b) and 53a-15. Accordingly, we cannot properly look to the law of another jurisdiction simply because its laws are more favorable to the defendant.

The defendant's claim is rooted in the policy consideration that Connecticut should not "becom[e] dumping grounds for prosecutions that would be dismissed in the courts of sister states." Whether that problem currently exists or is likely to arise in the future is an issue for the legislature to consider with the aid of empirical data. The legislature is, of course, free to amend...