State v. Lowe

• Decision Date: 02 January 2001
• Docket Number: (AC 17642)
• Citation: 61 Conn. App. 291,763 A.2d 680
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOHNNIE LOWE

61 Conn. App. 291

763 A.2d 680

STATE OF CONNECTICUT v. JOHNNIE LOWE

(AC 17642)

Appellate Court of Connecticut.

Argued October 16, 2000.

Officially released January 2, 2001.

Lavery, C. J., and Schaller and Hennessy, JS. J. Brendan Sharkey, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were John T. Redway, state's attorney, and Russell C. Zentner, assistant state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Johnnie Lowe, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sale of a narcotic substance, cocaine, in violation of General Statutes § 21a-278 (b),¹ and one count of sale of a narcotic substance, cocaine, within 1500 feet of a school in violation of General Statutes § 21a-278a (b).² The defendant claims that the trial court improperly (1) permitted a witness who had been sitting at the prosecution table to testify as to chain of custody issues involving the narcotics although the court previously had ordered the sequestration of witnesses, and (2) denied the defendant's requests to question the prosecuting attorney regarding chain of custody and, therefore, denied the defendant a fair trial. We affirm the judgment of the trial court.

Because this appeal arises out of evidentiary rulings made at trial, the following facts and procedural history are necessary for our resolution of this appeal. The jury reasonably could have found that, on January 18, 1996, while conducting undercover drug purchases for the Middletown police department, Officer Richard Batts drove his unmarked vehicle to the side of a road where the defendant was standing and offered to purchase $20 worth of crack cocaine from him. The defendant walked along the street and, upon returning a few minutes later, told Batts that he should come back later because he could not get any at that time. Approximately two and one half hours later, Batts returned to the same area and waved to the defendant. The defendant directed Batts to drive into a parking lot, which was within 1500 feet of an elementary school, where he sold Batts three "rocks" of crack cocaine for $50. Each rock was contained in its own clear plastic bag.

Batts conducted a similar investigation in the same area on March 8, 1996. Batts again approached the defendant and asked him if he could buy some crack cocaine. The defendant replied that he did not have any but that he could get some. The defendant took Batts' $50, walked along the street and met with him at a nearby parking lot where the defendant gave him three "rocks" of crack cocaine.

During trial, to admit the narcotics into evidence, the prosecution attempted to establish its chain of custody. Testimony from several witnesses set forth the following chain of custody with respect to the narcotics sold on January 18, 1996. Batts immediately took the narcotics to Sergeant Frank Violissi, who was waiting in a nearby "safe area." Violissi then brought them to police headquarters, where he and Detective Scott Aresco conducted a field test that revealed positive results for crack cocaine. Aresco then secured the narcotics in the department's evidence room. From there, they were taken to Joel Milzoff of the Connecticut department of public health toxicology laboratory on January 25, 1996, where they remained until June 9, 1997. A similar chain of custody was testified about with respect to the narcotics sold on March 8, 1996; however, Batts gave the narcotics to Violissi and Detective Michael Kerkes. Kerkes field-tested them, and Milzoff retained them at the toxicology laboratory, where they remained, except as hereinafter described, from March 14, 1996, to June 9, 1997.

The defendant objected to the prosecution's various attempts to admit the evidence on the ground that the state failed to establish a complete chain of custody. The court agreed that the chain was incomplete because the state had not established custody from June 9, 1997, when the evidence was no longer in the possession of the toxicology laboratory, to July 14, 1997, when the trial commenced.

The prosecution was unable, however, to account for that time period without the testimony of James Gill, an inspector for the state's attorney's office, who had been seated at the prosecution table since the trial began. Because the court previously ordered sequestration such that witnesses could not be present during other witnesses' testimony and could not discuss their testimony at any time with any witness,³ the court heard argument, outside the presence of the jury, as to whether Gill should be permitted to testify.

Over the defendant's objection, the court permitted Gill to testify that he had received the narcotics from the toxicology laboratory and delivered them to the prosecuting attorney, assistant state's attorney Russell C. Zentner. Shortly thereafter, it was revealed that the narcotics did not remain at the state's attorney's office at all times during the six weeks prior to trial, but that Zentner occasionally had brought them to his home. The defendant requested that he be allowed to examine Zentner as a witness regarding his custody and possible mishandling of the evidence. The court denied the request on the ground that there was no compelling need to warrant calling the prosecuting attorney to testify.

The court subsequently admitted the narcotics into evidence, and the jury returned a guilty verdict on all three counts. On August 29, 1997, the court sentenced the defendant to a total term of eleven years imprisonment. This appeal followed.

I

The defendant first claims that the court violated the sequestration order when it allowed Gill to testify as to chain of custody because Gill had heard all previous testimony while seated at the prosecution table, thereby depriving the defendant of a fair trial. We disagree.

For the defendant to prevail on his claim, he must show that (1) the court violated a sequestration order and (2) he was prejudiced by the violation. See State v. Robinson, 230 Conn. 591, 599, 646 A.2d 118 (1994). "A violation of a sequestration order does not automatically require a new trial.... The controlling consideration is whether the defendant has been prejudiced by the violation.... If the prejudice resulting from the violation is likely to have affected the jury's verdict, a new trial must be ordered." (Citations omitted.) Id.; State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982). "The burden is on the defendant to show prejudice in the trial court's failure to observe its sequestration order...." State v. Stovall, 199 Conn. 62, 69, 505 A.2d 708 (1986); see State v. Robinson, supra, 599. Thus, the defendant bears the burden of demonstrating that "it is more probable than not that the erroneous action of the court affected the result." (Internal quotation marks omitted.) State v. Nguyen, 52 Conn. App. 85, 93, 726 A.2d 119 (1999), aff'd, 253 Conn. 639, 756 A.2d 833 (2000).

The state concedes, and we agree, that the court violated its sequestration order when it allowed Gill to testify. Therefore, we must consider whether the court's violation was "probably harmful to the defendant." State v. Stovall, supra, 199 Conn. 68.

"Not all testimony that is tainted by a violation of a sequestration order is necessarily prejudicial. Rather, [a]n inquiry into the facts and circumstances of each case is necessary to ascertain whether the purpose of a sequestration order has been thwarted." (Internal quotation marks omitted.) State v. Robinson, supra, 230 Conn. 600; State v. Scott, 16 Conn. App. 172, 182, 547 A.2d 77, cert. denied, 209 Conn. 821, 551 A.2d 758 (1988).

"The primary purpose of a sequestration order is to ensure that the defendant receives a fair trial by preventing witnesses from shaping their testimony to corroborate falsely the testimony of others." (Internal quotation marks omitted.) State v. Nguyen, supra, 52 Conn. App. 90; see also State v. Stovall, supra, 199 Conn. 67-68. It is not limited to corroborative evidence, but also includes contradictory and tailored testimony. State v. Robinson, supra, 230 Conn. 600. "Sequestration orders assure that witnesses will testify solely on the basis of their personal knowledge." State v. Brown, 56 Conn. App. 26, 32, 741 A.2d 321 (1999), cert. denied, 252 Conn 927, 746 A.2d 790 (2000). "In essence, it helps to ensure that the trial is fair." State v. Robinson, supra, 600.

Therefore, we must determine whether Gill's testimony was in any way tailored to the testimony he heard and, second, if it was tailored, whether Gill's testimony was likely to have affected the jury's verdict. Id., 601.

The defendant argues that Gill was likely to tailor his testimony to meet the state's burden of establishing chain of custody since he saw firsthand the state's difficulty in admitting the narcotics into evidence and was aware of which gaps in the chain of custody time line needed to be accounted for. We are not persuaded. There is no presumption that a witness who desires a particular result because of his role in the prosecution's investigation will shape his testimony in favor of the prosecution's case. See State v. DiBella, 157 Conn. 330, 342, 254 A.2d 477 (1968) (finding no presumption of complicity by two police officers who "conducted practically the entire investigation and desire[d] a successful result"). Likewise, we are not convinced that by virtue of Gill's awareness of the state's need to account for the evidence on certain dates, he would be likely to alter his testimony. He was no more likely to alter his testimony than any other witness who is aware that his testimony involves a crucial matter. Therefore, it is necessary for us to examine Gill's testimony for evidence that he "fabricated his testimony to comport with" that of the preceding witnesses. State v. Scott, supra, 16 Conn. App. 183.

Gill testified...