State v. Napoleon, 5333

• Decision Date: 09 October 1987
• Docket Number: No. 5333,5333
• Citation: 12 Conn.App. 274,530 A.2d 634
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Herman NAPOLEON.

Page 634

530 A.2d 634

12 Conn.App. 274

STATE of Connecticut v. Herman NAPOLEON.

No. 5333.

Appellate Court of Connecticut.

Argued June 9, 1987.

Decided Sept. 8, 1987.

Certification Denied Oct. 9, 1987.

Peter A. Kelly, New Haven, for appellant (defendant).

Geoffrey Marion, Deputy Asst. State's Atty., with whom, on the brief, were David P. Gold and James G. Clark, Asst. State's Attys., for appellee (state).

Before BORDEN, DALY and BIELUCH, JJ.

BIELUCH, Judge.

The defendant appeals from his judgment of conviction rendered in accordance with the jury's verdict of guilty on the following charges: (1) possession of narcotics, to wit, cocaine and heroin, with intent to sell in violation of General Statutes § 21a-277(a); ¹ (2) possession of narcotics, to wit, cocaine and heroin in violation of General Statutes § 21a-279(a); ² (3) possession The jury could reasonably have found the following facts. On July 2, 1985, at approximately 5:45 p.m., three plainclothes police officers of the New Haven police department encountered a group of men standing near a car parked on Lilac Street. The officers observed the defendant rolling a marijuana cigarette. They stopped their unmarked police vehicle and approached the group of men, whereupon they observed the defendant throwing a brown paper bag into a nearby automobile. The defendant then started to walk away from the group, but was stopped by the approaching officers.

                of a controlled substance, to wit, marijuana, with intent to sell in violation of General Statutes § 21a-277(b); 3  and (4) possession of a controlled substance,[12 Conn.App. 276]  to wit, marijuana in violation of General Statutes § 21a-279(c). 4  He claims that the convictions for possession of narcotics with intent to sell (count one) and possession of narcotics (count two), as well as his convictions for possession of a controlled substance with intent to sell (count three) and possession of a controlled substance (count four), violate his right to be free from double jeopardy under the federal constitution and state law.   He also claims that the evidence was insufficient to support his convictions for possession of narcotics with the intent to sell and possession of a controlled substance with intent to sell.   Finally, the defendant claims that the trial court erred in excluding evidence of bias harbored by the arresting officer, and in excluding evidence of the probable evasion of service of subpoenas by two persons present at the scene of the arrest.   We find error
                

The officers retrieved from the automobile the brown paper bag which contained four manila envelopes containing a plant-like substance and four glassine bags containing a white powder. The defendant was then arrested and searched. On his person, the officers found a small tin "Sucrets" box containing fifteen aluminum foil packets and four glassine bags, all containing a white powder. Upon analysis by the state toxicology laboratory, the plant-like substance was identified as marijuana. Of the fifteen foil packets seized, eight contained cocaine. Six of the eight glassine bags contained heroin. The remaining two glassine bags contained cocaine.

I

DOUBLE JEOPARDY

The defendant claims that his convictions of possession of narcotics with intent to sell and simple possession of narcotics violated the federal and state prohibitions against double jeopardy. He makes the same claim as to his convictions for possession of a controlled substance with intent to sell and possession of a controlled substance. The state has expressly conceded, in its brief and in oral argument before this court, that the defendant's claim of double jeopardy violations is correct. In light of our decision in State v. Williams, 12 Conn.App. 225, 530 A.2d 627 (1987), released concurrently with this decision While the state concedes that the defendant may not incur multiple punishments for duplicate offenses, it asserts that the finding of a double jeopardy violation does not require vacating the defendant's underlying multiple convictions as well as the multiple sentences. In brief, the state contends that we should vacate the two double jeopardy sentences and leave the underlying convictions undisturbed. The state urges this court to adopt the procedural remand fashioned by the Second Circuit Court of Appeals in United States v. Estrada, 751 F.2d 128 (2d Cir.1984), aff'd in part, 757 F.2d 27 (2d Cir.), cert. denied, 474 U.S. 830, 106 S.Ct. 97, 88 L.Ed.2d 79 (1985). In Estrada, the defendant was convicted of ten counts of federal narcotics violations, including conspiracy to possess cocaine with intent to distribute (count two) and conspiracy to import cocaine (count six). Id., 130. He was also convicted of engaging in a continuing criminal enterprise (count one). At sentencing, the district court imposed a sentence of fifteen years on the criminal enterprise conviction, and a sentence of fifteen years on each of the two conspiracy convictions, all three sentences to be served concurrently. The court further declared that " '[t]he sentence imposed on counts two and six [the two conspiracy counts] are merged into the sentence on count one [engaging in a continuing criminal enterprise].' " Id., 134.

                we need not restate here the application of double jeopardy principles to the crimes of possession of narcotics and possession of narcotics with intent to sell.   We note further that the reasoning expressed in  State v. Williams, supra, applies equally to the defendant's convictions for possession of a controlled substance with intent to sell and possession of a controlled substance, to wit, marijuana. 5  Therefore, the [12 Conn.App. 278] defendant's conviction and sentence for possession of narcotics and his conviction and sentence for possession of a controlled substance, the second and fourth counts, respectively, must be set aside
                

The Second Circuit Court of Appeals found error in the trial court's sentencing of the defendant for the conspiracy offenses (counts two and six), which were found to be lesser included offenses in the conviction on the continuing criminal enterprise charge (count one). The court of appeals vacated the sentences on the conspiracy convictions (counts two and six) "and join[ed] and combine[d] the convictions thereon with the conviction on [engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (count one) ]." Id., 135. In so holding, the court reasoned that "if the conviction on the lesser offense[s] were vacated, [the] defendant might avoid all punishment if an appellate court later reversed the single conviction on the compound offense but would have upheld the conviction on the lesser count[s]." Id., 134, citing United States v. Gomez, 593 F.2d 210 (3d Cir.), cert. denied, 441 U.S. 948, 99 S.Ct. 2172, 60 L.Ed.2d 1052 (1979). The court stated that " 'in the unlikely event that sometime in the future his conviction on [the greater offense] shall be overturned, the sentence imposed on the unaffected conviction on [the lesser offense should be] reinstated.' ... Under this method, the convictions on the lesser counts become combined with that on the compound offense and would not be merged out of existence. This leaves the part of the conviction on the lesser offense unaffected should the compound offense be invalidated as a matter of law. The convictions on the lesser offenses would not exist as separate convictions so long as the [count one] conviction remained in place. Thus, the risk of any collateral consequences that separate convictions may entail would be eliminated and satisfy the concern expressed in [ United States v. Rosenthal, 454 F.2d 1252 (2d Cir.), cert. denied, 406 U.S. 931, 92 S.Ct. 1801, 32 L.Ed.2d 134 (1972), and United States v. Buckley, 586 F.2d 498 (5th Cir.1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979) ], that a defendant not be prejudiced by outstanding separate convictions on lesser included offenses." (Emphasis in original.) United States v. Estrada, supra, 134-35.

In a concurring opinion, Judge Kearse deemed unclear "what the precise effect is of 'join[ing]' or 'combinsthe convictions on Counts 2 and 6 'with the conviction on Count 1' ... [and deemed it] appropriate to vacate the convictions on the two lesser-included offenses, on the condition that the convictions on those offenses would be reinstated in the event that the conviction on the greater offense, Count 1, were ever overturned for reasons not affecting the validity of the convictions on Counts 2 and 6." (Emphasis added.) Id., 135.

After Estrada, the United States Supreme Court on March 25, 1985, decided Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In Ball, the United States Supreme Court held that the congressional intent and the prohibition against multiple punishments required the vacating of a duplicitous federal criminal conviction, as well as its attendant sentence. In so holding, the court recognized that "[o]ne of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense." See Missouri v. Hunter, 459 U.S. 359, 368 [103 S.Ct. 673, 679, 74 L.Ed.2d 535] (1983).

"The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a further offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction.... Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment." (Emphasis in original; ...