State v. Peary

• Decision Date: 21 May 1979
• Citation: 405 A.2d 626,176 Conn. 170
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Willie J. PEARY.

Page 626

405 A.2d 626

176 Conn. 170

STATE of Connecticut v. Willie J. PEARY.

Supreme Court of Connecticut.

Argued June 9, 1978.

Decided Sept. 26, 1978.

Certiorari Denied May 21, 1979.

See 99 S.Ct. 2417.

Mary V. McCarthy, Hartford, for appellant (defendant).

George D. Stoughton, State's Atty., for appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

LONGO, Associate Justice.

The defendant was charged in a four-count information with the possession and sale of heroin on two occasions, in violation of General Statutes §§ 19-452 and 19-480(a). He has appealed to this court from the judgment rendered upon a jury verdict of guilty, assigning many errors in the conduct of the trial. ¹ We have carefully examined all of the defendant's claims which deserve review and have found nothing to warrant reversal.

The state's chief witness, a former undercover agent for the capitol region crime squad, testified that on November 2, 1970, he was assigned to try to purchase narcotics from Willie J. Peay, ² the defendant. The agent met with an informer and together they went to the defendant's apartment in Hartford, where the defendant admitted them. The informer introduced the agent as his cousin. The defendant had about twenty-five glassine envelopes in a cigarette package; he sold two of them to the agent. Those two envelopes were tested and found to contain herion. On November 6, 1970, the agent returned with the informer to the defendant's apartment and purchased from him two more envelopes which also contained heroin. The defendant denied his presence in the apartment on November 2, and testified that he had not possessed any drugs or sold any drugs to the agent on either of the two dates.

The defendant claims the court erred in not granting a mistrial because of the prosecution's failure to produce the informer as a witness. At the close of the prosecution's case, detectives testified that despite diligent efforts to serve a subpoena, they had been unable to locate the informer at his home or elsewhere. Defense counsel then moved for a mistrial. The motion was denied, but a day's continuance was granted. On the following day the informer was not produced by either side and the mistrial motion was not renewed.

A motion for a mistrial is addressed to the wise discretion of the court; it should be granted if it is apparent to the court that because of some occurrence upon trial the accused cannot have a fair trial and the whole proceedings are vitiated. State v. Hafner, 168 Conn. 230, 245-46, 362 A.2d 925. We disagree that the informer's absence denied the defendant a fair trial. His testimony was not vital to the state's case, and it is purely speculative for the defendant to insist in the alternative that the informer's testimony would have been favorable to him, as tending to discredit the agent's version of events. See State v. Harris, 159 Conn. 521, 529, 271 A.2d 74, cert. dismissed, 400 U.S. 1019, 91 S.Ct. 578, 27 L.Ed.2d 630. The court acted well within its discretion in not declaring a mistrial.

The defendant was cross-examined regarding his means of support, his involvement in narcotics traffic at and near the time of the two alleged sales, and his reasons for keeping five dogs in his apartment. Those questions were relevant and material to matters raised in the defendant's testimony denying the charges against him. The defendant's objections to them were properly overruled. State v. Brathwaite, 164 Conn. 617, 619-20, 325 A.2d 284.

The prosecution attempted to extend this inquiry into the defendant's background with a series of irrelevant questions tending to show that the defendant had never held a job and that he had a history of involvement in narcotics traffic and of association with narcotics dealers. The court sustained defense counsel's objections and none of the questions was answered. The defendant's complaint on appeal, that the court did not go far enough, but should have ordered a mistrial or instructed the jury to disregard the questions, merits no consideration. The matter was not raised and ruled on in the trial court; State v. Uriano, 165 Conn. 104, 106, 328 A.2d 679; and any prosecutorial impropriety falls far short of the serious misconduct needed to bring this case within the "exceptional circumstances" rule of State v. Evans, 165 Conn. 61, 69, 327 A.2d 576. See State v. Hafner, supra, 168 Conn. 251-53, 362 A.2d 925.

The defendant contends that the court should not have permitted the agent and his superior to testify as to their familiarity with the defendant, his apartment building, and his apartment. Specifically, the agent testified that he had seen the defendant on two occasions prior to the heroin sales and had been in his apartment four times. The agent's superior testified that he was well acquainted with the defendant's apartment building and had known the defendant for twelve years.

As both men were experts in the narcotics field, the defendant argues that evidence of their familiarity with him and with his dwelling could have prejudiced the jury and led them to believe that the defendant had been involved in drug-related criminal activities in the past. That evidence, otherwise relevant and material, which tends to link an accused with other crimes does not render it inadmissible, if its probative value outweighs its prejudicial tendency. State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147. Whether the defendant twice sold heroin to the agent in his apartment was directly at issue in the case. We cannot say that the trial court abused its discretion in determining that the prejudicial effect of the testimony was outweighed by its probative value.

The defendant claims error in various rulings permitting police officers to testify on rebuttal as to efforts to locate the informer and as to whether the defendant had a tenant selling narcotics in his apartment. The latter testimony, although prejudicial, was in general contradiction of testimony given by the defendant. We find no abuse of discretion in the court's rulings. State v. Fine, 159 Conn. 296, 301, 268 A.2d 649.

The defendant also complains of related rulings allowing two police officers to testify on cross-examination as to the circumstances of a second arrest of the defendant on a conspiracy charge, shortly after his arrest for the heroin sales. The defendant called the police officers as witnesses in an apparent effort to discredit the factual basis for his arrest on the narcotics charges. The police officers' testimony that the second arrest had an independent basis was within the scope of cross-examination.

Error has been assigned in the admission as evidence for identification purposes of a "mug shot" of front and side views of the defendant. The agent and his superior identified this picture as the one the agent on November 2, and November 6, 1970, had selected from an array of fifteen photographs as being a picture of the man who sold drugs to him on those dates. The court then permitted the photograph to be admitted as an exhibit for the jury, ordering that the police markings be covered.

" A 'mug shot' is admissible if it is relevant and material and if its probative value outweighs its prejudicial tendency." State v. Crowe, 174 Conn. 129, 131, 384 A.2d 340, 341. This "mug shot" had limited probative value in view of the agent's in-court identification of the defendant as the man who sold him drugs on the two dates alleged and his testimony that he had seen the defendant on two prior occasions. Cf. State v. Crowe, supra; State v. Woods, 171 Conn. 610, 613, 370 A.2d 1080. Concealment of any police markings indicating a conviction, however, mitigated the prejudicial effect of the photograph. State v. Woods, supra. While we caution against the indiscriminate use of "mug shots" for identification; see, generally, annot., 30 A.L.R.3d 908; we find no abuse of the trial court's discretion here. ³

The defendant further claims that the court erred in denying his motion to have stricken from the information the two aliases by which he was named. The information under which he was prosecuted named the defendant as "Willie J. Peary, alias Willie J. Peay, alias Willie Peay." During the course of the trial the defendant cross-examined several state's witnesses to determine whether they had ever known him under the name of "Peary." Each conceded that the defendant had only been known under the name "Peay," the state's main witness stating that the name "Peary" could well have come from the way in which he had written the defendant's name on the back of a photograph of him. Having ascertained this information, the defendant moved that the aliases be stricken, and that the information name him only under his proper name, Willie J. Peay. The defendant reasoned that use of the term "alias" was prejudicial, that the name "Peary" was erroneously supplied by the state, and that the presence or absence of a middle initial does not constitute an alias. The court denied the motion, noting that the aliases had nothing to do with the merits of the case.

At the time of the trial, Practice Book, 1963, § 501 provided that "(i)n an indictment, information or bill of particulars it is sufficient for the purpose of identifying the accused to state his true name Or to state the name, appellation or nickname by which he has been or is known." ⁴ (Emphasis added.) This provision implies that use of an alias in an information is permissible only if the defendant has been or is known under the name designated. In the only previous case in which this court has addressed the issue now posed by the defendant, it was held that the trial court did not err in denying the defendant's motion to expunge from the indictment the alias of "The Cowboy," the court reasoning that "(t)he accused was known by this name and the State had the right to designate him by the alias under which he was known." State v....