State v. Martinez, AC 32879

Decision Date25 June 2013
Docket NumberAC 32879
CourtAppellate Court of Connecticut


AC 32879


Argued January 4, 2013
Officially released June 25, 2013

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DiPentima, C. J., and Beach and Bishop, Js.

(Appeal from Superior Court, judicial district of
Fairfield, geographical area number two, Kahn, J.)

Alice Osedach, assistant public defender, for the appellant (defendant).

James M. Ralls, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellee (state).

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BISHOP, J. The defendant, Anthony Martinez, appeals from the judgment of conviction, rendered following a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a) and conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a-48 (a) and 21a-277 (a). The defendant claims that (1) there was insufficient evidence to prove that he committed the crimes of possession of narcotics with intent to sell and conspiracy to possess narcotics with intent to sell; (2) the trial court improperly admitted testimony regarding narcotics field test results without a Porter1 hearing; and (3) prosecutorial impropriety deprived him of a fair trial. We agree with the defendant's claim of prosecutorial impropriety, and, therefore, reverse the conviction on both counts and remand the case for a new trial. We also address the merits of the defendant's second claim because it is likely to arise on retrial.

The jury reasonably could have found the following facts. On June 2, 2009, Lieutenant Christopher LaMaine, of the Bridgeport police department, was conducting an investigation into suspected drug activity at a particular residence in Bridgeport. While conducting surveillance of the residence, LaMaine observed two individuals, later identified as Javier Nevarez and Camilla Blakes, approach the residence in what he concluded was an attempt to purchase narcotics. Nevarez and Blakes left the residence without engaging in a drug transaction and, instead, drove their car to Washington Park in Bridgeport, an area known for drug activity. LaMaine followed Nevarez and Blakes and parked his surveillance van on the edge of the park. From the backseat of the van, through tinted windows, LaMaine watched Nevarez and Blakes approach a male who directed them to a bench farther into the park. The defendant and Maria Vargas were sitting on that park bench with their backs toward LaMaine.

Eighty-two yards away from the bench where the defendant and Vargas were sitting, LaMaine used binoculars to view the scene. He testified that the defendant and Vargas sat next to each other, almost shoulder to shoulder, with the defendant on the right side of the bench and Vargas in the middle. Nevarez and Blakes approached the defendant, and Nevarez and the defendant appeared to speak briefly. The defendant and Vargas both then looked down at a common point in their laps. Although LaMaine could not see their hands, laps, or what they were looking at, from the way they both turned toward each other and down, LaMaine believed that the defendant and Vargas appeared to exchange something. The defendant then reached up to a point at which his hand was visible to LaMaine, and LaMaine observed him appear to exchange something with Nevarez. Nevarez and Blakes then turned and walked back

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toward their vehicle and as Nevarez walked, he inspected something in his hand, cupping it in one palm and poking it with his other finger, consistent, according to LaMaine, with an inspection of drugs.

After Nevarez and Blakes left the bench, a second man approached the defendant and another apparent exchange took place between the defendant and Vargas, and then between the defendant and the second man, in the exact same manner that had occurred with Nevarez. The second man walked away and was never identified or apprehended. As Nevarez and Blakes got back into their car, LaMaine radioed nearby officers to stop the car to check for narcotics. As the officers were approaching, Nevarez and Blakes pulled the vehicle over and parked. Officer Gregory Iamartino, who was driving an unmarked vehicle, exited his vehicle and went to the driver's side of Nevarez' car. When Nevarez noticed Iamartino, he placed an item into his mouth and swallowed it. Iamartino saw a glass crack pipe and two small bags of what appeared to be crack cocaine in the center console of the vehicle between Nevarez and Blakes. Iamartino relayed back to LaMaine that the car was stopped and suspected narcotics were seized.2 A subsequent field test performed by Officer Nicole Donawa yielded a positive result for the presence of crack cocaine and heroin in the drugs found in the car.

LaMaine called in additional units of the narcotics team, which then entered Washington Park and arrested the defendant and Vargas. When officers approached the defendant, he did not attempt to run away or resist arrest, and no contraband was found on him.3 Officer Barbara Gonzalez searched Vargas and, after noticing the top of a plastic bag sticking out of the top of her pants, discovered a plastic bag containing what appeared to be small parcels of narcotics concealed in her pants. Gonzalez also found $25 on Vargas. The substances in the bags were field tested and subsequently sent to the state controlled substance toxicology laboratory where the substances tested positive for cocaine and heroin.

The state charged the defendant by way of an amended information with one count of possession of narcotics with intent to sell in violation of § 21a-277 (a), one count of possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), one count of conspiracy to possess narcotics with intent to sell in violation of §§ 53a-48 (a) and 21a-277 (a), and one count of conspiracy to possess narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a (b). At the close of evidence, the defendant moved for a judgment of acquittal on the ground that the state had not proven the charges beyond a reasonable doubt. It was denied. After closing arguments, the defense moved again for a judgment of acquittal or for a new trial. The court

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also denied both motions. Following deliberations, the jury found the defendant guilty on the counts of possession of narcotics with intent to sell and conspiracy to possess narcotics with intent to sell, and not guilty on the counts related to being within 1500 feet of a school. The trial court, after accepting the jury's verdict, sentenced the defendant to concurrent terms of twelve years incarceration on the possession and conspiracy counts, execution suspended after five years, with five years of probation. This appeal followed. Additional facts will be set forth as necessary.


The defendant's first claim challenges the sufficiency of the evidence at trial to sustain his conviction of possession with intent to sell and conspiracy to possess with intent to sell. Specifically, the defendant argues that there was insufficient evidence that he ever had dominion or control over the narcotics discovered on Vargas' person or that he had an agreement with Vargas to possess the narcotics with the intent to sell. We begin this analysis with a discussion of the law regarding sufficiency of the evidence before turning to an assessment of the defendant's claims as they relate to the possession and conspiracy charges.

"The standard of review we apply to a claim of insufficient evidence is well established. In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

"We note that the jury must find every element proven beyond a reasonable doubt in order to find the...

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