State v. Mish

• Decision Date: 16 September 2008
• Docket Number: No. 27284.,27284.
• Citation: 110 Conn.App. 245,954 A.2d 854
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Robert Edward MISH, Sr.

954 A.2d 854

110 Conn.App. 245

STATE of Connecticut v. Robert Edward MISH, Sr.

No. 27284.

Appellate Court of Connecticut.

Argued May 28, 2008.

Decided September 16, 2008.

Carlos E. Candal, special public defender, for the appellant (defendant).

Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were David Shepack, state's attorney, and Devin T. Stilson, senior assistant state's attorney, for the appellee (state).

BISHOP, BEACH and FOTI, Js.

FOTI, J.

The defendant, Robert Edward Mish, Sr., appeals from the judgment of conviction, rendered after a jury trial, of two counts of possession of narcotics in violation of General Statutes § 21a-279(a), two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278(b)¹ and two counts of conspiracy to sell cocaine in violation of General Statutes §§ 53a-48 and 21a-278(b). On appeal, the defendant claims that (1) the court improperly denied his motion to dismiss for failure to grant him a speedy trial, (2) the court improperly limited his cross-examination of a state's witness and (3) the court incorrectly denied his motion for a judgment of acquittal because the evidence adduced at trial was insufficient as a matter of law to support his conviction of two counts of sale of narcotics by a person who is not drug-dependent. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 2003, acting on the concerns of the New Milford police department, the statewide narcotics task force (task force) initiated an investigation into the possible trafficking of cocaine out of the Eagles Cafe in New Milford. Information provided by the New Milford police department, as well as other sources, indicated that the defendant supplied the cocaine to the individuals selling narcotics out of the cafe. Officer David Eldridge, assigned to the task force and acting undercover, made several narcotics purchases in the cafe in the subsequent weeks.

On January 22, 2004, at 8:15 p.m., Eldridge returned to the Eagles Cafe. Forty-five minutes later, he left after purchasing one gram of cocaine from James Taylor, a low-level drug dealer working for the defendant. The defendant was present at this transaction and actually took the money from Eldridge and put it in his pocket. On February 4, 2004, Eldridge made another purchase of cocaine from Taylor and the defendant in the cafe. Again, Taylor handed Eldridge the drugs, and the defendant took the money from Eldridge.

The jury could have also found that these two purchases were but a small part of an illegal drug conspiracy that specialized in trafficking cocaine, organized and controlled by the defendant, which operated in the New Milford area. This operation involved the "bagging up," selling and distributing for sale of two to three ounces of cocaine per week. Several people were involved in this operation, including Taylor, Robert Kelly and Robert Edward Mish, Jr., the defendant's son. The defendant estimated to various individuals that this operation netted him $3000 a week.

On March 10, 2004, the defendant was arrested. At the time, he was serving a thirteen and one-half year sentence on an unrelated conviction for violation of probation. On February 2, 2005, he filed a speedy trial motion. On February 8, 2005, the court granted this motion. The defendant was subsequently found guilty by the jury of the subject charges. On December 2, 2005, the court sentenced the defendant to a total effective sentence of fifteen years incarceration of which five cannot be suspended. This appeal followed. Additional facts will be set forth where necessary.

I

First, the defendant claims that the court improperly denied his motion to dismiss for failure to grant him a speedy trial.² Specifically, the defendant challenges the court's factual findings with respect to excludable time from speedy trial calculations. We disagree.

The following facts are necessary for our resolution of the defendant's claim. The defendant, while incarcerated for a previous conviction, was arrested on March 10, 2004, on the subject charges. On February 2, 2005, the defendant filed a motion for a speedy trial pursuant to General Statutes § 54-82c. On February 8, 2005, the court, Brunetti, J., granted the motion for speedy trial and set a trial date for May 26, 2005.

On May 18, 2005, defense counsel filed with the court, pursuant to General Statutes § 54-56d, a motion requesting an evaluation of the defendant to determine his competency to stand trial.³ On May 25, 2005, the court, Brunetti, J., ordered that an examination be done within fifteen days and continued the case until June 9, 2005, expressly tolling the time for the defendant's speedy trial.⁴ At the hearing, defense counsel reported observing, on several occasions during extended meetings with the defendant, paranoid behavior to the extent that the defendant was unable to assist in his defense. This behavior was a marked deviation from the defendant's past behavior. Moreover, the defendant was offering no relevant information in preparation of his defense. The defendant also addressed the court. He opposed the motion and asked how he could stop the court from granting it. The court granted the motion.

On June 9, 2005, the court, Gill, J., in light of the fact that the requested examination had yet to occur, continued the case until July 1, 2005. In reference to this additional continuation, counsel for the defendant expressed a "need to reschedule [the examination]" and did not raise any objection. A report determining that the defendant was competent was filed with the court on June 29, 2005.⁵ At a July 7, 2005 hearing, the report was admitted into evidence, and the court, Gill J., found the defendant competent to stand trial. The defendant's attorney indicated that he was prepared to stipulate to the court that the defendant was competent to stand trial, as well. The court also specified that it was ready to start jury selection the following day. The defendant's counsel, however, requested that jury selection not begin until July 12, 2005. After an off the record discussion with the defendant, the defendant's counsel stated to the court that the defendant agreed to delay jury selection until July 12, 2005. The court granted the continuance and ordered jury selection to begin on July 12, 2005.

On July 12, 2005, the defendant filed a pro se, handwritten motion to dismiss⁶ for violation of his right to a speedy trial. The court, Gill, J., denied this motion, finding that there was no violation of § 54-82c and that "all the delays [were] attributable to initiatives of the defense. . . ."

At the outset, we identify the applicable standard of review. "The determination of whether a defendant has been denied his right to a speedy trial is a finding of fact, which will be reversed on appeal only if it is clearly erroneous. . . . The trial court's conclusions must stand unless they are legally and logically inconsistent with the facts. . . . Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact both on the accused and on society." (Citation omitted; internal quotation marks omitted.) State v. Lacks, 58 Conn.App. 412, 417, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000).

"General Statutes § § 54-82c and 54-82d provide a statutory method by which an inmate of a Connecticut penal institution who has a detainer placed against him can request and receive an expedited disposition of pending charges. The inmate must be serving a sentence at that time in order to have the procedure available to him. . . . Eligible inmates are entitled to a trial within 120 days or to a dismissal of the pending charges, if they follow the procedure outlined in the statutes. . . . If the procedure is complied with and the case is not assigned for trial within 120 days, then the charges must be dismissed. . . . The trial court may, however, toll the 120-day period by granting, for good cause shown, any necessary or reasonable continuance." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986).

The start date for calculating days for the defendant's speedy trial motion was February 2, 2005. See State v. Springer, 149 Conn. 244, 250, 178 A.2d 525 (1962) (completed delivery of request for trial and information concerning confinement starts 120 day period). Accordingly, absent any excludable delay, pursuant to the 120 day limit, the start of the defendant's trial would have been June 1, 2005.

The defendant argues that the delay from May 25 through July 7, 2005, occasioned by his competency examination and the proceedings related to it, amounting to forty-four days, was erroneously calculated by the court as excludable delay in regard to his speedy trial motion. He makes two arguments in support of this contention.

First, the defendant argues that the entire delay occasioned by the examination and proceedings related to his competence was unnecessary, and, therefore, the court erroneously included this delay in its calculations of excludable time for speedy trial calculations. The defendant asserts that he opposed the competency examination to the court at the May 25, 2005 hearing. As such, it was not a personal request of the defendant. Therefore, he contends, the court erroneously included the delay in its calculation of excludable time. We do not agree.

This court has concluded that in cases in which "requests for continuances [are] made by defense counsel rather than by the defendant, himself, we find that distinction to be inconsequential. Absent some indication to the contrary, a court is entitled to rely on counsel's representations on behalf of his or her client." (Internal quotation marks omitted.) State v. Jeffreys, 78...