State v. Ober

• Decision Date: 02 April 1991
• Docket Number: No. 8884,8884
• Citation: 24 Conn.App. 347,588 A.2d 1080
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Daryl OBER.

Page 1080

588 A.2d 1080

24 Conn.App. 347

STATE of Connecticut v. Daryl OBER.

No. 8884.

Appellate Court of Connecticut.

Argued Dec. 3, 1990.

Decided April 2, 1991.

Kent Drager, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Carolyn K. Longstreth, Asst. State's Atty., with whom, on the brief, was John Redway, State's Atty., for appellee (State).

Before NORCOTT, FOTI and CRETELLA, JJ.

NORCOTT, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b). He challenges (1) the sufficiency of the evidence for his conviction, (2) the admission of evidence allegedly obtained in violation of his right against unreasonable searches and seizures, (3) the reading of the information to the jury at the start of trial, (4) the admission of an alleged hearsay statement, (5) the trial court's instructions on reasonable doubt, and (6) the trial court's decision allowing the state's attorney to retain a copy of the presentence investigation report.

The jury could have reasonably found the following facts. On June 18, 1989, Officer William Clayton of the Middletown police department was patrolling the north end of Middletown, an area known for drug trafficking, in a marked police cruiser. At approximately 10 p.m., he received a radio message dispatching him to the area of 39 Liberty Street to check on a suspicious vehicle. Officer Kevin Singleton was also sent to Liberty Street as a back-up officer.

When Clayton turned onto Liberty Street, the only car he saw was a red Chevrolet Beretta. Two people were seated inside the car and a third was standing on the sidewalk near the passenger window, apparently leaning into the car. As Clayton pulled behind the Chevrolet, Singleton arrived and parked his cruiser in front of the car, boxing it in.

When the officers approached the car, the person who had been standing at the passenger door began to walk away rapidly. Clayton and Singleton called to him to return. When he did, Clayton recognized him as T, a fifteen year old whom Clayton had seen many times in suspicious circumstances. Singleton then interviewed T.

Clayton approached the driver, who was still in the car, and asked him for identification. He learned that the driver was Theodore Bennett of East Haddam. Clayton asked Bennett what he was doing on Liberty Street, and Bennett responded that he was going to the Cromwell Burger King. Dissatisfied with this answer, Clayton asked Bennett how to get to his stated destination, but Bennett did not know.

Clayton then went to the passenger side of the car where the defendant was seated. Because the defendant appeared reluctant to answer Clayton's questions, Clayton asked him to get out of the car. As the defendant got out of the car, Clayton saw several $100 bills tucked loosely into the map pocket on the inside of the passenger door. He closed the door, escorted the defendant to the rear of the car and asked him for identification. When the defendant opened his wallet, Clayton saw a pistol permit. He asked the defendant if he was carrying a weapon, and the defendant answered that he was not. Clayton next asked the defendant if there were any guns in the car, and the defendant asserted that there were not.

The officers then searched the car for weapons. Singleton entered the car from the passenger side. As he bent to look under the passenger seat, he saw a plastic bag protruding from between the passenger seat and the front console. Singleton pulled the bag out and saw that it contained a white powdery substance that he believed to be narcotics. Singleton seized the bag and Clayton placed the defendant, Bennett and T under arrest.

Singleton continued to search the car and found a brown paper bag on the floor behind the passenger seat. In it he found a wooden pipe with a dirty filter, a tube partially filled with a yellowish liquid, a large plastic cup, a smaller container with a cover and a second plastic bag that held a white, powdery and rocky substance.

The defendant was then searched incident to his arrest. A $100 bill was found in his pants pocket and seized. The five $100 bills in the map pocket of the passenger door were also seized. The defendant, Bennett and T each denied ownership or knowledge of the $500.

At the Middletown police station, Officer David Christiana inventoried the contents of the defendant's wallet. Inside the wallet he found several pieces of paper. On some slips were names with telephone numbers and on another were many of the same names with other figures. Christiana testified that these papers appeared to be records of drug transactions, listing quantities of drugs delivered and amounts of money owed. Christiana also described the practice of drug dealers of diluting cocaine with other substances and testified that several of the items found in the paper bag could have been used in that respect.

Subsequent testing revealed that neither the plastic bag taken from the front seat of the car nor the tube contained a narcotic substance. The other items found in the paper bag, however, including the white powdery and rocky substance, tested positive for cocaine.

I

The defendant first claims that his conviction was based on insufficient evidence. Specifically, he alleges that the state failed to present sufficient evidence to establish that he possessed the cocaine found behind the passenger seat of the car. ¹ We disagree.

It is axiomatic that, in reviewing a claim of insufficient evidence, this court must determine, viewing the evidence presented in the light most favorable to sustaining the verdict, whether "the trier could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt." State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985). Therefore, the question before us in this case is whether, from the facts presented at trial, it was reasonable and logical for the jury to determine that the defendant had constructive possession of the cocaine that was seized from behind the passenger seat of the car.

General Statutes § 21a-278(b) requires proof that the defendant possessed a narcotic substance. To establish possession, the state must show beyond a reasonable doubt that "the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it." State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); see also State v. Brunori, 22 Conn.App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). "Where the defendant is not in exclusive possession of the premises where the narcotics are found, 'it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.' ..." (Citations omitted.) State v. Alfonso, supra, 195 Conn. at 633, 490 A.2d 75. Thus, "the presence of the defendant near the contraband without more is insufficient to support an inference of possession." State v. Brunori, supra, 22 Conn.App. at 436, 578 A.2d 139.

In this case, there was sufficient other indicia of ownership to support the defendant's conviction. The defendant was seen seated in a parked car conversing with an individual who was well known to the police in an area known for drug trafficking. Five $100 bills were loosely tucked into the map pocket of the passenger door next to the defendant, and another $100 bill was found in his pants pocket. In addition, the defendant was carrying what appeared to be drug records in his wallet. This evidence, combined with the fact that the drugs and drug paraphenalia were discovered on the floor of the car directly behind the defendant, shows a pattern of drug dealing and, as such, sufficiently supports the jury's verdict.

There is no merit to the defendant's claim that the papers found in his wallet cannot be used to show that he possessed the cocaine seized. In support of this claim, the defendant asserts that Christiana believed that those papers were drug records only because he assumed a fact properly left for the jury's determination, i.e., that the defendant possessed the cocaine that was seized. At trial, however, Christiana testified that he believed that the papers were drug records not because he thought that the defendant was found in possession of the cocaine seized but because of the circumstances of the defendant's arrest and the character of the other items that were seized. Thus, the use of the papers found in the defendant's wallet is not, as he suggests, circular reasoning.

II

The defendant next claims that the trial court improperly admitted evidence obtained in violation of his state and federal constitutional rights against unreasonable searches and seizures. Specifically, he challenges the initial stop of the car and the search and seizure of the brown bag and its contents.

Because the defendant failed to preserve this claim at trial by filing a motion to suppress, he requests review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We decline to review this claim because the defendant has not satisfied the first prong of Golding, namely, that the record is adequate to review the alleged claim of error. State v. Golding, supra, 239-40, 567 A.2d 823.

A stop for investigative purposes is justified under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), when police have a reasonable and articulable suspicion that the person is engaged or about to be engaged in criminal activity. See State v. Aillon, 202 Conn. 385,...