State v. Martin
| Decision Date | 21 November 2006 |
| Docket Number | No. 25823.,25823. |
| Citation | 98 Conn.App. 458,909 A.2d 547 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Andre D. MARTIN |
Arthur L. Ledford, special public defender, for the appellant (defendant).
C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state).
The defendant, Andre D. Martin, appeals from the judgment of conviction, rendered after a jury trial, of attempt to possess one kilogram or more of marijuana with the intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 21a-278(b)1 and 53a-49,2 possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 21a-279(b),3 and conspiracy to possess one kilogram or more of marijuana with the intent to sell in violation of General Statutes §§ 21a-277(b), 21a-278(b) and 53a-48.4 On appeal, the defendant claims that the evidence was insufficient to convict him on these charges. We agree and therefore reverse the judgment of the trial court.5
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. At the end of May, 2003, Don Hibbert, a special agent assigned to the Bridgeport office of the federal Drug Enforcement Administration (DEA) was contacted by Thomas Barbee, an agent with the Tucson, Arizona, office of the DEA. Barbee contacted Hibbert regarding a suspicious package that had been left at the Yellow Freight Company (Yellow Freight) in Tucson to mail to an address in Bridgeport. Although the address to which the package was to be mailed existed, a background investigation revealed that the name to whom the package was addressed was fictitious. On either May 31 or June 1, 2003, the DEA agreed to allow the package to be routed to Connecticut, but with delivery at the Yellow Freight facility in Middletown. No surveillance was conducted on the package in route.
When the package arrived at the Middletown facility on June 9, 2003, Yellow Freight informed Hibbert, who had obtained a federal search warrant for the package prior to its arrival. Hibbert brought the package to the state police building located in Meriden, which is approximately five to ten miles from Yellow Freight. Together with state police, Hibbert opened the package, which was found to be a wooden crate. Inside were four white buckets that resembled five gallon paint buckets. Each bucket contained one or more large bundles heavily wrapped in plastic. Upon examining the material packed in the bundles, Hibbert believed the substance was marijuana on the basis of his extensive previous experience, but he did not perform a field test on the substance. Later laboratory tests confirmed that the substance in the package was marijuana, and the total weight of the material was approximately eighteen pounds.6 The marijuana, at the point of entry into the country, would sell wholesale for $400 to $500 per pound and would sell retail for $1000 to $1200 per pound. In the Bridgeport area, the marijuana would have a markup of three to four times the original retail price per pound.
Because the total weight of marijuana did not meet the threshold for federal prosecution, it was decided that the high intensity drug trafficking area task force, comprised of federal, state and local officials, would seek state prosecution of any violation of the state drug dependency laws. The state's attorney's office decided that all but 4.4 ounces of the marijuana would be removed from the package. The package then was filled to approximate its original weight. Jeremy DiPietro, a detective with the Bridgeport police department, and a state trooper took over the investigation and, on the evening of June 9, 2003, the state trooper, working undercover, telephoned the person Yellow Freight was to contact to pick up the package. He told the person to pick up the package at approximately noon the following day. On June 10, 2003, the trooper and DiPietro transferred the package from the state police office back to Yellow Freight.
On June 10, 2003, police set up surveillance of Yellow Freight and the immediate surrounding area. Hibbert and DiPietro were at "point of contact" in the Yellow Freight parking lot, approximately 2000 feet from the loading dock. William Brooks, a detective with the Bridgeport police department, was located in the loading dock area conducting video surveillance. Edwin Kohl, a state detective assigned to the statewide cooperative crime control task force with the DEA in Bridgeport, conducted aerial surveillance from a DEA plane using binoculars and a camera. The surveillance operation of the Yellow Freight facility on June 10, 2003, revealed the following scenario.
At approximately 12:15 p.m., a tan Mitsubishi Gallant entered the lower parking lot of the Yellow freight complex with a man driving and a woman in the front passenger seat. The woman, later identified as Janine Crockett, got out of the car and spoke with a Yellow Freight representative. The man in the car appeared to be talking on a cellular telephone as Crockett reappeared, spoke to him and then got back into the car. The car left the lot and turned onto Country Club Road, where it rendezvoused with another vehicle, a maroon Chevrolet,7 for approximately one to two minutes. The tan Mitsubishi then returned, and Crockett again got out of the vehicle, this time holding an unidentifiable object in her left hand. When she again returned to the vehicle, it backed up to the loading dock, and the man in the vehicle made a call on his telephone. A Yellow Freight employee brought the package to the individuals in the vehicle. The package at first was too large to maneuver into the vehicle, and Crockett had to move up her seat in order to fit the package in the backseat. The Yellow Freight employee handed the man a signature receipt, and he, in turn, gave it to Crockett. Crockett refused to sign the receipt and handed it back to the man, who signed it himself and returned it to the employee.
Some time after the tan Mitsubishi completed its first trip into the Yellow Freight parking lot, but before its second trip, during which its occupants picked up the package, the maroon Chevrolet entered the lot and drove into the lower parking lot where Hibbert and DiPietro were located. The vehicle, which was occupied by two men, one of whom later was identified as the defendant, drove slowly around the lot. It then stopped, and the defendant, who was a passenger in the vehicle, got out of the car. The defendant was out of the vehicle for fewer than five minutes, during which time he walked around the lot, casually looking at the vehicles in the lot as he passed them. He then returned to the vehicle, and the Chevrolet left the lot. Shortly thereafter, the tan Mitsubishi returned, and the package was picked up.
When the tan Mitsubishi left the lot after the package was picked up, it was driven away from the entrance ramp to Interstate 91 and again rendezvoused with the maroon Chevrolet. Then both vehicles merged onto Interstate 91 southbound and together traveled to 98 Holly Street in Bridgeport.8 As they traveled, the two vehicles maintained a consistent distance from each other, remained primarily in the right lane and traveled within the speed limit; the vehicles did not make any quick lane changes or do anything else to attract attention. The surveillance team maintained sight of the vehicles until they reached their destination.
After the vehicles reached the Holly Street residence, an individual, later identified as Keith Mangan, was seen bringing the package into the house. The defendant testified that he helped Mangan carry the crate up the stairs in front of the house. The maroon Chevrolet was not seen in front of the house again after the defendant left it and entered the house.
The surveillance team waited several minutes after seeing the package brought into the house before executing the search and seizure warrant. It was understood by the officers executing the warrant that all people involved were to be arrested. When Hibbert, who was the first officer at the front door of the house, approached, a woman identified as Diana York was on the porch. Hibbert identified himself, and York ran inside and slammed the front door shut. An officer behind Hibbert opened the door with a breach tool, and Hibbert entered the apartment. York was just inside the front door, and the defendant was approximately twelve feet from the door, in the living room. Mangan was in the bedroom, which was off to the left. Hibbert told everyone to get on the floor, and everyone, including the defendant, was compliant. Hibbert located the crate, still sealed, in the bathroom, inside a free-standing tub and concealed by a shower curtain. The defendant and Mangan were equidistant from the bathroom where the package was discovered.
Hibbert conducted a patdown search of the defendant. The defendant was in possession of a wallet, a cellular telephone, an $800 check and $1291 in cash. The cash was comprised of a few fifty dollar bills, but mostly twenty, ten and five dollar bills. The defendant told Hibbert that the cash was for a car payment he had to make on his Mercedes Benz, which was being repaired that day. The defendant did not have any weapons, drugs, or drug paraphernalia on his person. After the defendant was arrested, Hibbert checked his name with the narcotic and dangerous drugs information systems, which revealed that the defendant had no past drug related offenses and was not the subject of a current drug related investigation.
Additionally, the following information was elicited from the defendant on cross-examination.9 Although he had been living in Connecticut for at least four years prior to the trial, the defendant did not have a Connecticut driver's...
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