State v. Long

• Decision Date: 27 April 1976
• Citation: 171 Conn. 18,368 A.2d 199
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Melvin LONG.

Page 199

368 A.2d 199

171 Conn. 18

STATE of Connecticut v. Melvin LONG.

Supreme Court of Connecticut.

April 27, 1976.

William F. Tiernan, Jr., New Haven, for appellant (defendant).

Ernest J. Diette, Jr., Asst. States Atty., with whom, on the brief, was Arnold Markle, States Atty., for appellee (state).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BARBER, Associate Justice.

The defendant was tried to a jury and convicted of the crime of sale of heroin, in violation of § 19-480(a) of the General Statutes. On appeal, he has assigned error in the court's failure to charge the jury in accordance with his request and in the court's failure to rule upon his motion to suppress the use by the state of a prior felony conviction for impeachment purposes on cross-examination.

According to our appellate rules in effect at the time the assignment of errors was filed, claims of error in the charge are tested by the claims of proof set forth in the finding. State v. Brown, 163 Conn. 52, 58, 301 A.2d 547. The finding in this case reveals that the state offered evidence to prove the following: On February 8, 1971, Officer Theodore W. Forbes, a member of the West Haven police department assigned to the South Central Regional Crime Squad as an undercover agent, met with Maurice Greer on Columbus Avenue in New Haven. Forbes and Greer drove in Forbes' automobile to West Street in New Haven and parked the car. Greer had told Forbes that Forbes would be able to purchase drugs on West Street from a person named 'Melvin Long.' At 4:30 p.m., shortly after Forbes and Greer had parked on West Street, the defendant approached the automobile and sold Forbes twenty-seven glassine envelopes containing a white powder for $200. Three of the glassine envelopes sold by the defendant to Forbes contained an opiate substance. Officer Forbes identified the defendant in court as the person who had sold him the twenty-seven glassine envelopes. Maurice Greer was present at the transaction between Forbes and the defendant but did not testify at the trial. Officer Forbes testified that he had attempted to locate Greer during a two-month period following the defendant's arrest but had been unable to do so. Forbes had visited 82 Anderson Avenue, West Haven, which had at one time been Greer's address, several times and had spoken with other residents of that address. The defendant called two private investigators as witnesses. The first investigator, Richard Blauvelt, testified that he had, at the request of the defendant's counsel, attempted to serve a subpoena on Greer at 82 Anderson Avenue but was unable to do so. The second investigator, William E. LeBlanc, had also unsuccessfully attempted to serve a subpoena on Greer at 82 Anderson Avenue. LeBlanc learned that Greer had at one time lived at 80, not 82, Anderson Avenue but had since moved to 215 Rosette Street in New Haven. LeBlanc was unable to find Greer at the Rosette Street address.

The defendant requested the court to charge the jury, in reference to Greer, as follows: 'The failure of a party to produce a witness who is within his power to produce and would have naturally been produced by him or her, permits, although it does not require, an inference that the evidence of the witness, if produced, would have been unfavorable to his or her case.' The court refused to charge in accordance with this request, noting that no evidence had been produced that Greer was available to testify.

' The failure of a party to produce as a witness one who is available and who naturally would be produced permits the inference that such witness, if called, would have exposed facts unfavorable to the party's cause. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 . . .. To take advantage of this rule permitting an adverse inference, the party claiming the benefit must show that he is entitled to it.' State v. Brown, 169 Conn. 692, 704, 364 A.2d...