State v. Sanchez
| Decision Date | 25 February 2003 |
| Docket Number | No. 22979.,22979. |
| Citation | 75 Conn.App. 223,815 A.2d 242 |
| Parties | STATE of Connecticut v. Elvin SANCHEZ. |
| Court | Connecticut Court of Appeals |
Louis S. Avitabile, special public defender, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva B. Lenczewski, senior assistant state's attorney, for the appellee (state).
The defendant, Elvin Sanchez, appeals from the judgment of conviction, rendered after a jury trial, of the crimes of conspiracy to possess a narcotic substance with the intent to sell in violation of General Statutes §§ 53a-48 and 21a-277 (a), 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 (a), possession of a narcotic substance with the intent to sell in violation of General Statutes § 21a-277 (a) and possession of marijuana in an amount less than four ounces in violation of General Statutes § 21a-279 (c). We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On June 17, 1999, the Waterbury police department's tactical narcotics team patrolled the Lincoln and Chapman Streets area, which was known as a heavy drug trafficking neighborhood. The team, which consisted of Officers Lawrence Smith, Robert Jones and Timothy Jackson, was riding in an unmarked car and noticed a brown Mercury Sable parked, but with the motor running. Upon driving alongside the vehicle, the team saw two men sitting in the car. The officers later testified that the defendant was in the driver's seat and Nick Ortiz was in the passenger's seat. Smith and Jones observed the defendant smoking a blunt,1 and all three officers could smell the marijuana because both the officers' and defendant's windows were down.
Upon noticing the officers' car, the defendant stated, "Oh, shit!" Subsequently, the defendant began to drive away and was stopped by the officers shortly thereafter. Smith and Jones witnessed the defendant flicking the blunt out of the passenger's window. The officers arrested and searched both the defendant and, after chasing him down, Ortiz. The team retrieved the blunt from the sidewalk and discovered, upon searching the vehicle, in plain view in an open ashtray a bag containing approximately thirteen grams of freebase form cocaine (crack cocaine), a green bag containing nearly two grams of marijuana and a ripped plastic bag containing 0.55 grams of salt form cocaine (powder cocaine). The officers also confiscated $67 but found no drug paraphernalia on either the defendant or Ortiz, or in the car.
On April 6, 2001, after trial, the jury returned a verdict of guilty as to all counts. On June 15, 2001, the court sentenced the defendant to a total effective term of twenty years incarceration, execution suspended after eleven years, with five years of probation to be served concurrently. Additional facts will be set forth as necessary.
On appeal, the defendant claims that (1) his conviction in violation of § 21a-278 (a) should have been dismissed because his probable cause hearing was structurally defective, (2) his conviction for having violated §§ 21a-278 (a) and 21a-277 (a) violates the federal and state proscriptions against double jeopardy, (3) the court improperly denied his motions for a judgment of acquittal on the ground of insufficient evidence as to the conviction on the first three counts of the information, (4) the court abused its discretion by refusing to let him present evidence of his coconspirator's prior criminal conviction, (5) the court abused its discretion by refusing to let him present evidence of his coconspirator's medical records and (6) the court violated his federal and state constitutional rights to confrontation and to present a defense by not admitting extrinsic evidence to impeach two state's witnesses. We affirm the judgment of the trial court.
The defendant first claims that the court should have granted his motion to dismiss the second count of the information, which charged him with possession of a narcotic substance with the intent to sell in violation of § 21a-278 (a). The defendant argues that his initial probable cause hearing was structurally defective because he was subject to a possible sentence of life imprisonment and was not represented by counsel at that critical stage in the proceedings. The defendant, claiming that General Statutes § 54-46a2 requires that a probable cause hearing be conducted within sixty days of the original filing of the information and that his second probable cause hearing occurred well after that period, challenges on appeal his second probable cause hearing. He concludes therefore, that count two should have been dismissed. We disagree.
The following additional facts are relevant to our resolution of the defendant's claim. On June 18, 1999, the state filed an information charging the defendant with, among other counts, possession of a narcotic substance with the intent to sell in violation of § 21a-278 (a). The court, Damiani, J., scheduled the probable cause hearing for August 17, 1999, sixty days from the date of the original filing of the information pursuant to § 54-46a (b). The defendant was put on notice, prior to the probable cause hearing, that if he failed to appear with counsel, he would have to proceed pro se. On August 17, 1999, the defendant arrived without counsel for the probable cause hearing, and the court, Damiani, J., ordered him to appear, nonetheless, before the court, Gill, J., who found that probable cause existed.
On March 21, 2001, after jury selection was completed, the defendant filed a motion to dismiss the second count of the information on the ground that he was not represented by counsel at the probable cause hearing. On March 23, 2001, the court, Damiani, J., denied the motion to dismiss, ruling that the appropriate remedy was not to dismiss the count, but rather to schedule a new probable cause hearing. That same day, the defendant appeared before the court, Cofield, J., represented by counsel, and was given a new probable cause hearing. The court, again, found probable cause and trial commenced.
An adversarial probable cause hearing is a critical stage in the prosecution and a jurisdictional prerequisite to continuing prosecution. State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986). "Accordingly, an invalid finding of probable cause at such a hearing undermines the court's power to hear the case at trial." Id. Our Supreme Court has (Citations omitted.) State v. Boyd, 221 Conn. 685, 697, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S.Ct. 344, 121 L.Ed.2d 259 (1992); see also State v. White, 229 Conn. 125, 139-40, 640 A.2d 572 (1994) ().
(Internal quotation marks omitted.) State v. Bordeleau, 72 Conn.App. 33, 39, 804 A.2d 231 (2002).
In this case, the court properly denied the defendant's motion to dismiss. The defendant mistakenly relies on State v. Cohens, 62 Conn.App. 345, 773 A.2d 363, cert. denied, 256 Conn. 918, 774 A.2d 139 (2001), in which a defendant was forced to represent himself at his criminal trial without the court first obtaining a valid waiver of his right to counsel. Id., at 351-52, 773 A.2d 363. In this case, however, the court ordered a second probable cause hearing to be held so counsel could represent the defendant and to avoid any problems with the initial probable cause hearing. Therefore, the second probable cause hearing, pursuant to the well established remedy previously stated, cured any defect in the initial hearing even though the second hearing was held after the sixty day time period. Additionally, although the jury was chosen prior to the second probable cause hearing, it was not tainted because it was unaware of the second probable cause hearing, and the charges remained the same as those that were presented at the initial hearing. Furthermore, after the appropriate remedy was carried out, the defendant received a fair trial. Thus, there was no violation § 54-46a, and the motion to dismiss properly was denied.
In his second claim, which is unpreserved, the defendant asserts that his conviction of possession of a narcotic substance with the intent to sell in violation of §§ 21a-278 (a) (crack cocaine)3 and 21a-277 (a) (powder cocaine)4 violated the state and federal constitutional prohibitions against double jeopardy. In view of the facts that powder cocaine and crack cocaine are two distinct narcotics and that the defendant was charged with having violated two different statutes, we find no double jeopardy violation.5
The defendant claims, and the state concurs, that a claim of double jeopardy is reviewable...
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...a street term used to describe a cigar filled with marijuana, instead of tobacco, and smoked to ingest the drug." State v. Sanchez, 75 Conn.App. 223, 226 n. 1, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003). Odum testified that in this case the blunts also were laced with ph......
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...for same act or transaction).11 Statutory construction is a matter of law over which we exercise plenary review. State v. Sanchez, 75 Conn.App. 223, 232, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 A The defendant's first double jeopardy claim is that he was unconstitutionally c......
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...drug dealing occurring, in which the defendant went between that location and a nearby suspected stash house.14 See State v. Sanchez, 75 Conn. App. 223, 243, 815 A.2d 242 ("[e]vidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to......
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...drug dealing occurring, in which the defendant went between that location and a nearby suspected stash house.14 See State v. Sanchez, 75 Conn.App. 223, 243, 815 A.2d 242 (“[e]vidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to ......
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Overview
...Stores, Inc. , 867 So.2d 869 (La. App. 2d Cir. March 3, 2004); Rittenour v. Gibson, 656 N.W.2d 691, 2003 (2003); State v. Sanchez , 815 A.2d 242, 75 Conn. App. 223 (2003); State v. Francis D ., 815 A.2d 191, 75 Conn. App. 1 (2003); State v. Jolley , 656 N.W.2d 305 (2003). 26 Pifer v. Irwin ......
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Overview
...Stores, Inc. , 867 So.2d 869 (La. App. 2d Cir. March 3, 2004); Rittenour v. Gibson, 656 N.W.2d 691, 2003 (2003); State v. Sanchez , 815 A.2d 242, 75 Conn. App. 223 (2003); State v. Francis D ., 815 A.2d 191, 75 Conn. App. 1 (2003); State v. Jolley , 656 N.W.2d 305 (2003). 9 Aleo v. SLB Toys......
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Overview
...Stores, Inc. , 867 So.2d 869 (La. App. 2d Cir. March 3, 2004); Rittenour v. Gibson, 656 N.W.2d 691, 2003 (2003); State v. Sanchez , 815 A.2d 242, 75 Conn. App. 223 (2003); State v. Francis D ., 815 A.2d 191, 75 Conn. App. 1 (2003); State v. Jolley , 656 N.W.2d 305 (2003). 25 Aleo v. SLB Toy......
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Overview
...Stores, Inc. , 867 So.2d 869 (La. App. 2d Cir. March 3, 2004); Rittenour v. Gibson, 656 N.W.2d 691, 2003 (2003); State v. Sanchez , 815 A.2d 242, 75 Conn. App. 223 (2003); State v. Francis D ., 815 A.2d 191, 75 Conn. App. 1 (2003); State v. Jolley , 656 N.W.2d 305 (2003). 9 Aleo v. SLB Toys......