State v. Mullings

• Citation: 348 A.2d 645,166 Conn. 268
• Court: Supreme Court of Connecticut
• Decision Date: 16 April 1974
• Parties: STATE of Connecticut v. David MULLINGS.

Page 645

348 A.2d 645

166 Conn. 268

STATE of Connecticut v. David MULLINGS.

Supreme Court of Connecticut.

April 16, 1974.

Thomas J. Corradino, New Haven, for the appellant (defendant).

Jerrold H. Barnett, Asst. State's Atty., with whom were Ernest J. Diette, Jr., Asst. State's Atty., and, on the brief, Arnold Markle, State's Atty., and Dennis F. Gaffney, Asst. State's Atty., for the appellee (state).

Before HOUSE, C.J., and COTTER, SHAPIRO, LOISELLE and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

After a trial by jury, the defendant, David Mullings, was found guilty of selling heroin in violation of § 19-480(a) of the General Statutes. The defendant's motion to set aside the verdict was denied by the trial court and from the judgment rendered thereon he has appealed to this court.

The first of several assignments of error pursued by the defendant in his brief is that the court erred in failing to grant his motion to set aside the verdict of guilty because it is not supported by the evidence. In his brief, the defendant appears to limit his contention to the claim that the death of Officer Frank Hawley before the trial created a serious gap in the case against him because Hawley could not testify or be cross-examined. The trial court's action on a motion to set aside a verdict on the ground that it was unsupported by the evidence is normally reviewed on the evidence printed in the appendices to the briefs. State v. Hall, 165 Conn. 599, 601, 345 A.2d 17; State v. Benton, 161 Conn. 404, 406, 288 A.2d 411; State v. Mariano, 152 Conn. 85, 100, 203 A.2d 305, cert. denied, 380 U.S. 943, 85 S.Ct. 1025, 13 L.Ed.2d 962. We have made a review in this case, but because of the manner in which the motion to set aside the verdict is raised and argued in the defendant's brief, we also have found it necessary to consult the transcript of evidence in order to determine whether the state has sustained its burden of proving the defendant guilty beyond a reasonable doubt. Practice Book § 721; see State v. Magoon, 156 Conn. 328, 335, 240 A.2d 853; State v. Bill, 146 Conn. 693, 694, 155 A.2d 752.

The evidence printed in the appendices to the briefs would permit the jury to find the following facts: In January of 1970, the New Haven police department conducted an undercover narcotics operation in which the participants were Officer Hawley and Detective Francis DeGrand. As part of the operation, Hawley posed as the proprietor of a store at 719 Congress Avenue. DeGrand, who had been trained and had worked in the narcotics field, was assigned the task of observing Hawley and of corroborating his activities with respect to narcotic sales.

The operation included using a Volkswagen panel-bus-type vehicle which had one-way glass windows on its four sides. This glass enabled a person inside the vehicle to look out and not be seen from the outside. The vehicle was parked in a location affording a good view of the store and the general area where Hawley was working.

On January 21, 1970, at approximately 4 o'clock in the afternoon, the vehicle was parked directly in front of the store, on the same side of the street, with DeGrand sitting inside it looking out of the side window at Hawley. The side window through which DeGrand was looking was approximately twelve inches by eighteen and its curtains had been pulled back so that they covered only about two inches on each side. DeGrand saw Hawley leave the store and stand on the sidewalk, where he was approached by the defendant and engaged in a short conversation. DeGrand saw the defendant hand something to Officer Hawley who in turn took some money out of his pocket, counted some out and handed it to the defendant. DeGrand at that time recognized the defendant, whom he had known for approximately three years and also recognzied him at the trial. After the defendant had received money from Hawley, he turned so that his back was toward Hawley and DeGrand and proceeded up Congress Avenue.

As the defendant was walking up Congress Avenue, Hawley took what the defendant had given him and held it between his thumb and forefinger. At that time, what the defendant had given Hawley appeared to DeGrand to be glassine bags or envelopes. Hawley then held the glassine bags up so that DeGrand could plainly see what they were. While moving towards the side door of the vehicle, Hawley showed DeGrand the objects and then closed his hand for a few seconds. He opened the door, dropped the glassine envelopes or bags inside the vehicle and closed the door. DeGrand saw Hawley's hand while he was approaching the vehicle door, but probably did not see his hand for a split second when the door was being opened. Thereafter, Officer Hawley entered the vehicle by the driver's side and drove it to Orange Street and Pitkin Alley in New Haven, where DeGrand got out and took the bags to his office at the intelligence division of the detective bureau.

There was evidence from which the jury could have found that DeGrand placed the bags in an envelope with the defendant's name on the envelope and locked it in a safe. The next day DeGrand took the envelope with its contents to the state taxicological laboratory, where Dr. Abraham Stolman, chief toxicologist for the state, subsequently analyzed the contents of the six glassine bags and found that four of the six bags contained heroin.

The defendant in his brief takes the position that DeGrand may have lost sight of Hawley's hand when watching the defendant walk down Congress Avenue or for the fraction of a second when moving backwards in the vehicle as Hawley opened the door. He maintains that Hawley, thus, had 'numerous opportunities to retain what was passed to him, if it was not glassine bags, and then show glassine bags to DeGrand as if he had received them from the defendant, finally throwing them in the vehicle.' The defendant further argues that Hawley was the only person who could say what was handed to him, and his death 'deprived . . . (the defendant) of the right of critical cross-examination.' The validity of this claim can only be decided by determining whether the presence of Hawley as a witness was a necessary prerequisite to the conviction of the defendant.

'As has been said so often, proof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which it tends to support and is consistent with the defendant's guilt and inconsistent with any other rational conclusion. The requirement that evidence must be such as satisfies beyond a reasonable doubt 'does not mean that the proof must be beyond a possible doubt, and a possible supposition of innocence is a far different thing from a reasonable hypothesis." State v. Smith, 138 Conn. 196, 200, 82 A.2d 816, 819; State v. Hall, supra, 345 A.2d at 17.

In the case before us, DeGrand had known the defendant for approximately three years and recognized him when he approached Hawley at the time of the transaction in question. While in DeGrand's view, Hawley held in his hands what the defendant had given him in exchange for money. Immediately after the transaction was completed and the defendant had turned his back, Hawley, still in DeGrand's sight, held what he received from the defendant between his forefinger and his thumb. As the defendant was walking away, Hawley held the objects up in the direction of the vehicle. At that time DeGrand could plainly see that they were glassine bags. Then, still holding the glassine bags in his hand and still in DeGrand's view, Hawley came to the vehicle, opened the door and dropped the bags inside. After Hawley had exhibited the bags to DeGrand, the only time that his hand might have been out of DeGrand's vision was the split second when Hawley opened the vehicle door and DeGrand moved back.

From the evidence before them, it is obvious that the jury, by their verdict, inferred that the glassine bags thrown in the van were the same objects the defendant passed to Hawley. Even if DeGrand were unable to state unequivocally that he had an unobstructed view of the glassine bags in Hawley's hand from the time Hawley received them until the time he placed them in the vehicle, the jury could reasonably infer that the bags DeGrand received were the same bags the defendant had handed to Hawley. Only minutes had elapsed between the transfer from the defendant to Hawley and then from Hawley to DeGrand. See State v. Englehart, 158 Conn. 117, 123, 256 A.2d 231; State v. DeCoster, 147 Conn. 502, 505, 162 A.2d 704.

In reviewing inferences drawn by a jury, the inquiry of the court is limited to determining whether the inferences were so unreasonable as to be unjustifiable. State v. McGinnis, 158 Conn. 124, 130, 256 A.2d 241. In this instance, we are convinced that the inference drawn by the jury, that the glassine bags thrown in the van were the same objects passed to Hawley by the defendant, was both reasonable and justifiable. Accordingly, the claim of the defendant that the testimony and cross-examination of Hawley was critical to a verdict of guilty is without merit.

There was ample evidence to prove the guilt of the defendant as charged. The court did not err in refusing to set aside the verdict.

The next assignment of error by the defendant is that the court erred in its charge to the jury by commenting on DeGrand's three-year acquaintance with the defendant prior to the alleged sale of narcotics. The defendant claims that this comment overemphasized the fact as it relates to the issue of identification. We find no merit to this claim.

The trial court may, at its discretion, call the attention of the jury to the evidence, or lack of evidence, bearing upon any point in issue and may comment upon the weight of the evidence so long as it does not direct or advise the jury how to decide the matter. State v. Searles, 113 Conn. 247, 257-258, 155 A. 213; State v. Wade, 96 Conn. 238, 245-246, 113 A. 458; State v. Cabaudo, 83 Conn. 160, 163...