State v. Respass

• Decision Date: 15 May 2001
• Docket Number: (SC 16252)
• Citation: 770 A.2d 471,256 Conn. 164
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. RENALDO TERRELL RESPASS

256 Conn. 164

770 A.2d 471

STATE OF CONNECTICUT v. RENALDO TERRELL RESPASS

(SC 16252)

Supreme Court of Connecticut.

Argued September 29, 2000.

Officially released May 15, 2001.

McDonald, C. J., and Borden, Palmer, Sullivan and Vertefeuille, Js.¹ Jeremiah Donovan, special public defender, with whom, on the brief, was Rita Christopher, for the appellant (defendant).

Michael L. Regan, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, state's attorney, and Paul E. Murray, supervisory assistant state's attorney, for the appellee (state).

Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Renaldo Terrell Respass, was convicted of possession of a narcotic substance with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),² possession of narcotics with intent to sell within 1500 feet of a private elementary school in violation of General Statutes § 21a-278a (b),³ possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b),⁴ and failure to appear in violation of General Statutes (Rev. to 1997) § 53a-172.⁵ The trial court rendered judgment in accordance with the verdict and the defendant appealed to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to General Statutes § 51-199⁶ and Practice Book § 65-1.⁷

On appeal, the defendant claims that the trial court improperly: (1) determined that the search warrant application set forth sufficient probable cause; (2) instructed the jury with respect to the elements of constructive possession; (3) declined to impose any sanction upon the prosecution for failure to disclose before trial a postarrest statement of the defendant; and (4) denied the defendant's posttrial motion to summon and question a juror who had told other jurors that he knew the defendant's supplier of illicit drugs. We reject all of the defendant's claims and, therefore, affirm the judgment of the trial court. The jury reasonably could have found the following facts. On May 29, 1997, five officers from the New London police department and the statewide narcotics task force conducted a search pursuant to a warrant at 48 Crystal Avenue, apartment A-97, in New London. After they knocked on the door and received no response, the officers opened the door using a master key. There was no one in the apartment.

The officers thereafter searched a clothes closet in the master bedroom. In the pockets of a man's jacket in the closet, one of the officers found one package of ninety glassine envelopes, each containing a white powder that was later identified as heroin. The officers also found in the same pocket another package of 100 glassine envelopes that contained white powder, which was determined to be heroin, and, in another pocket in the jacket, four plastic bags containing a plant-like material, later identified as marijuana.

While the officers were conducting the search they heard a noise at the apartment door. One of the officers went to investigate and found the defendant attempting to enter the apartment. When the defendant saw the police officers, he ran toward the stairwell. Two officers chased the defendant down nine flights of stairs and out onto Crystal Avenue, where they obtained assistance from a patrol car. The officers in the patrol car pursued the defendant, caught up to him and placed him under arrest.

During the booking process, the officers advised the defendant of the charges against him, and told him that his wife also had been arrested and charged with respect to the drugs found in the apartment. The defendant stated that his wife was not involved with the drugs and admitted that he had obtained the drugs from Calvin Sebastian. When asked to prove that his wife was not involved with the drugs by revealing where the drugs were hidden, the defendant replied that the drugs were in a jacket in the closet. Additional facts will be set forth as needed.

I

The defendant first claims that the trial court improperly determined that probable cause existed to justify a search warrant for his apartment. The defendant argues that the information in the search warrant application did not establish probable cause under the fourth amendment to the United States constitution⁸ or article first, § 7, of the Connecticut constitution.⁹

On May 29, 1997, the affiants submitted to a judge of the Superior Court an application for a search warrant, including a supporting affidavit, requesting authorization to search the defendant's apartment for heroin, cocaine, other controlled substances, drug paraphernalia and additional items used in the trafficking of narcotics.¹⁰ The judge, Parker, J., issued the warrant that same day. The affidavit supporting the application for the search warrant consisted of twenty-nine pages and fifty-one paragraphs. The affiants stated that they were members of the statewide narcotics task force and that they had training and experience in narcotics investigations. On the basis of information obtained from four reliable informants, surveillance, and numerous controlled narcotics buys, the affiants claimed that Sebastian was operating a large scale cocaine and heroin distribution network throughout the city of New London.

The defendant¹¹ is the subject of paragraph forty-four of the affidavit, which alleged: "That specific to this investigation the affiants have knowledge that Sebastian utilizes 48 Crystal Ave. A-97, New London, CT. to store and distribute narcotics throughout the Crystal Ave. housing complex. That based on CI [confidential informant] information and surveillance the affiants can confirm that Sebastian supplies [the defendant] who resides at 48 Crystal Ave. A-97, New London, CT. That throughout this investigation surveillance has determined Sebastian frequents 48 Crystal Ave. New London, and has been seen conducting numerous drug related transactions. That on 04/25/97 an undercover officer purchased a quantity of narcotics from [the defendant]. That the undercover officer positively identified [the defendant] at a later date during a surveillance of 48 Crystal Ave. New London, CT. when the undercover officer observed [the defendant] exit his vehicle and enter 48 Crystal Ave., New London, CT. That CI-C [a confidential informant] has stated to affiant [Officer Sean] Dautrich that [the defendant] is Sebastian's main associate who sells Sebastian's narcotics within Crystal Ave. housing complex. That CI-C further stated he has [firsthand] observed quantities of narcotics within the residence of [the defendant] and has been present when Sebastian has delivered the narcotics to [the defendant]." The only other reference to 48 Crystal Avenue, apartment A-97, in the warrant affidavit was in paragraph thirty-six, which provided in relevant part: "That based on the affiants training and experience locations such as ... 48 Crystal Ave. A-97 New London, CT. are properties utilized to facilitate an ongoing large scale narcotic trafficking operation...."

The defendant moved to suppress all evidence obtained during the search on the grounds that the warrant lacked probable cause, was overbroad, and contained a deliberate falsehood. The trial court denied that motion. Later, the defendant filed a second motion to suppress pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed.2d 667 (1978), alleging that the warrant application contained either a deliberate falsehood or a statement made in reckless disregard for the truth. Specifically, the defendant alleged that the following statements in the affidavit were false: "That on 04/25/97 an undercover officer purchased a quantity of narcotics from [the defendant]. That the undercover officer positively identified [the defendant] at a later date during a surveillance of 48 Crystal Ave. New London, CT. when the undercover officer observed [the defendant] exit his vehicle and enter 48 Crystal Ave., New London, CT." At the hearing on his motion, the defendant produced evidence that an informant had bought narcotics at the direction of an undercover officer, but that the officer did not purchase the drugs himself as stated in the affidavit accompanying the warrant application. The defendant produced an affidavit from the informant who allegedly had purchased drugs from the defendant at the direction of the undercover officer. The informant stated in the affidavit that the defendant was not the individual who had sold those drugs to her. The trial court thereafter found that the defendant had made a substantial showing in accordance with Franks, and deleted from paragraph forty-four of the affidavit accompanying the warrant application the following lines: "That on 04/25/97 an undercover officer purchased a quantity of narcotics from [the defendant]. That the undercover officer positively identified [the defendant] at a later date during a surveillance of 48 Crystal Ave. New London, CT. when the undercover officer observed [the defendant] exit his vehicle and enter 48 Crystal Ave., New London, CT." The court then considered whether the remaining allegations in the affidavit supported a finding of probable cause and concluded that, even without the deleted information, the remainder was sufficient to establish probable cause. Drawing reasonable inferences from the facts presented, the court held that the warrant established probable cause. Accordingly, the court denied the defendant's motion to suppress.

"The standards for upholding a search warrant are well established. We uphold the validity of [the] warrant... [if] the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed.... [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has...