State v. Qayyum, 122220 CTCA, AC 42456

Docket Nº:AC 42456
Opinion Judge:LAVERY, J.
Party Name:STATE OF CONNECTICUT v. MUHAMMAD A. QAYYUM
Attorney:Robert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, assigned counsel, for the appellant (defendant). Linda F. Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and David Shannon, supervisory assistant state's at...
Judge Panel:Bright, C. J., and Suarez and Lavery, Js.
Case Date:December 22, 2020
Court:Appellate Court of Connecticut

STATE OF CONNECTICUT

v.

MUHAMMAD A. QAYYUM

No. AC 42456

Court of Appeals of Connecticut

December 22, 2020

Argued September 9, 2020

Procedural History

Two part substitute information charging the defendant, in the first part, with the crime of conspiracy to sell narcotics and two counts of the crime of possession of narcotics with intent to sell, and, in the second part, with previously having been convicted of the crime of sale of narcotics, brought to the Superior Court in the judicial district of Litchfield at Torrington, where the first part of the information was tried to the jury before Danaher,

J.; verdict of guilty; thereafter, the defendant was presented to the court, Danaher, J., on a plea of guilty to the second part of the information; judgment of guilty in accordance with the verdict and plea, from which the defendant appealed to this court. Affirmed.

Robert L. O'Brien, assigned counsel, with whom, on the brief, was William A. Adsit, assigned counsel, for the appellant (defendant).

Linda F. Currie-Zeffiro, assistant state's attorney, with whom, on the brief, were Dawn Gallo, state's attorney, and David Shannon, supervisory assistant state's attorney, for the appellee (state).

Bright, C. J., and Suarez and Lavery, Js.

OPINION

LAVERY, J.

The defendant, Muhammad A. Qayyum, appeals from the judgment of conviction, rendered after a jury trial, of one count of conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 and 21a-277 (a) and two counts of possession of narcotics with intent to sell in violation of § 21a-277 (a). On appeal, the defendant claims that the trial court (1) violated his due process rights by shifting the burdens of proof and persuasion to him to prove that he had a legitimate source of income and (2) erred by allowing impermissible expert opinion testimony regarding his intent to sell narcotics. We affirm the judgment of the trial court.

The following facts, which the jury reasonably could have found, and procedural history are relevant to our discussion. On April 12, 2017, Torrington Police Officer Matthew Faulkner went to 356 Migeon Avenue in Torrington to execute a search warrant following his investigation regarding possible drug sales being conducted from unit 1 North, the apartment of Oscar Pugh. Officer Faulkner surveilled the residence for approximately one hour. During that time, two people separately arrived at Pugh's apartment but departed quickly. Officer Faulkner also saw the defendant arrive in a dark gray Infiniti sedan bearing Massachusetts license plates, which the defendant had rented from Hertz. The defendant had rented cars from Hertz for sixty-three days during the period from January, 2017, until his arrest in April, 2017, with the rentals costing between $2500 and $2600. Officer Faulkner frequently had observed the defendant at Pugh's apartment over these preceding months.

Additional police arrived approximately one hour after Officer Faulkner began his surveillance. The police executed the search warrant and detained the defendant and Pugh. The defendant eventually admitted that he had narcotics in his front pockets, and Officer Faulkner then proceeded to search them. Inside, he found $267 in small bills, seven wax folds of heroin, and two ‘‘dubs'' of crack cocaine.1 The police did not find any drug paraphernalia on the defendant or in his rental car, but a canine officer alerted on the car's trunk and door.

The police also searched Pugh. They found six wax folds of heroin and $2 in his pockets and a single dub of crack cocaine in his sock. They also found seventeen dubs of crack cocaine in between the couch cushions where Pugh was seated, along with various items of drug paraphernalia such as crack pipes and cut straws. Additionally, they found a handwritten ledger documenting narcotics sales. Pugh admitted that the narcotics found on his person were his and that he was a heavy user, but he denied that the other narcotics in the apartment belonged to him. Other than the $2 found on Pugh's person, the police did not find any other money within the apartment.

The defendant was charged by way of a substitute long form information with one count of conspiracy to sell narcotics in violation of §§ 53a-48 and 21a-277 (a) and two counts of possession of narcotics with intent to sell in violation of § 21a-277 (a). The defendant also was charged in a part B information with having twice been convicted of the sale of narcotics in violation of § 21a-277 (a). The defendant pleaded not guilty and elected to be tried by a jury. On August 16, 2018, a jury of six found the defendant guilty of all three counts. Later that day, the defendant pleaded guilty to the two counts of the part B information. On November 9, 2018, the court sentenced the defendant to a total effective term of twenty years of incarceration, execution suspended after twelve years, with five years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the trial court violated his due process rights by shifting the burdens of proof and persuasion to him. Specifically, he argues that the court erred by permitting the state to present evidence that he had no reportable wages, thereby suggesting that he earned a living selling drugs, and thus placing the burden on him to prove that he had a legitimate source of income. In response, the state argues that the defendant's challenge to the disputed testimony presents an evidentiary issue rather than a constitutional one and that the trial court did not abuse its discretion in determining that the probative value of the evidence of the defendant's lack of reportable wages was not outweighed by its prejudicial effect. We agree with the state.

The following additional facts are relevant to this claim. At trial, Pugh testified that he had known the defendant for more than one year and that the defendant had told him that he needed a place to sell drugs. Pugh further testified that, in the year preceding their arrests, the defendant would come by his apartment every few days and that he gave Pugh a reduced price for the drugs that Pugh used inexchange for using Pugh's apartment to sell drugs. Pugh saw the defendant sell drugs in his apartment but never saw the defendant use any heroin or crack cocaine.

After the first day of evidence, defense counsel informed the court that he objected to the state's anticipated presentation of testimony from David Ricciuti, a representative from the Department of Labor (department). After defense counsel questioned the relevance of such testimony, the prosecutor responded that the state intended to call Ricciuti to testify that the defendant had no reportable wages for the relevant time period prior to his arrest. In response, defense counsel preliminarily argued that such evidence was irrelevant, not probative of any issues in the case, prejudicial, and might ‘‘play on certain biases that people hold, implicit biases as well.'' The court informed the parties that it would entertain argument on the issue the following morning, and the prosecutor stated his intent to rely on State v. Perry, 58 Conn.App. 65, 68-69, 751 A.2d 843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000), in support of the admissibility of Ricciuti's testimony. The next morning, defense counsel did not argue that the evidence was irrelevant. Instead, he stated that his objection was ‘‘primarily an evidentiary objection based on [the expected testimony] being overly prejudicial and more prejudicial than probative'' because it did not demonstrate ‘‘an imminent financial burden on the defendant.'' Defense counsel argued that suggesting that someone is more likely to commit a crime because they do not have a job ‘‘inappropriately plays on biases that people may have, it fits into a stereotype and . . . runs the risk of arousing the jury's potential prejudices and implicit biases . . . .'' Defense counsel conceded that the issue was not ‘‘of a constitutional magnitude, '' although he did argue that admitting the evidence ‘‘would also shift the burden to [the defendant] to have to rebut the evidence, [which] would be impermissible or improper . . . .'' In response, the prosecutor argued that, when considered with other evidence, specifically the facts that the defendant had spent several thousands of dollars on rental cars during the months leading up to his arrest and had $267 and narcotics in his pocket, the evidence concerning his lack of reportable wages was more probative than prejudicial. In particular, the prosecutor argued that Ricciuti's testimony, coupled with the other evidence, would permit the jury to infer that the defendant's otherwise unexplained wealth came from drug trafficking. The court, relying on this court's opinion in Perry, overruled the defendant's objection. The court reasoned that Ricciuti's testimony was ‘‘not simply evidence . . . that the defendant does not have great resources. It's some evidence that he doesn't have a visible source of income . . . and yet he has funds to expend.'' The court noted that this court in Perry held that similar evidence was admissible and not unduly prejudicial. The court further noted that the evidence that the state sought to introduce was significantly less detailed than what was offered in Perry and, therefore, less prejudicial.

On direct examination, Ricciuti testified that the defendant did not have any wages in either 2016 or 2017 that were reported to the department. He acknowledged, however, that some people have ‘‘under the table jobs, '' for which the department would have no record. He also admitted on cross-examination that income from self-owned businesses, Social Security disability...

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