State v. Smart

• Decision Date: 24 May 1995
• Docket Number: No. 12546,12546
• Citation: 656 A.2d 677,37 Conn.App. 360
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Earl SMART.

Page 677

656 A.2d 677

37 Conn.App. 360

STATE of Connecticut v. Earl SMART.

No. 12546.

Appellate Court of Connecticut.

Argued Oct. 31, 1994.

Decided March 28, 1995.

Certification Denied May 24, 1995.

Deborah Del Prete Sullivan, Asst. Public Defender, for appellant (defendant).

Leon F. Dalbec, Jr., Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and Joseph Harry, Asst. State's Attorney, for appellee (state).

Before O'CONNELL, LAVERY and SCHALLER, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of sale of a narcotic substance in violation of General Statutes § 21a-278(b), of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278(b) and of conspiracy to sell a narcotic substance in violation of General Statutes §§ 53a-48(a) and 21a-278(b).

On appeal, the defendant claims that (1) his convictions of possession of narcotics with intent to sell and sale of narcotics, both in violation of General Statutes § 21a-278(b), violate his double jeopardy rights, (2) the trial court incorrectly admitted the statement of a nontestifying coconspirator where the defendant claims no evidence of a conspiracy existed, (3) the trial court incorrectly instructed the jury that it could consider the statement of the nontestifying coconspirator even if it determined that the statement was made before the defendant participated in the conspiracy, and (4) the trial court incorrectly instructed the jury regarding the overt act element of conspiracy. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The Bridgeport police received information that narcotic sales were occurring on Sanford Place in Bridgeport. Thereafter, members of the narcotics and vice division of the Bridgeport police department were assigned to attempt a "buy-bust" operation in that general area. In a buy-bust operation, an undercover police officer attempts to purchase narcotics from a suspected drug dealer and, after a purchase is made, backup units immediately proceed to the area and arrest the suspected dealer.

On May 26, 1992, Officer Warren DelMonte was assigned to attempt to purchase narcotics in the general area of 52 Sanford Place. Detective Ralph Villegas was part of the backup team, and was assigned to position his vehicle so that he could observe the transaction. The other members of the team, Detectives Richard DeRiso, Derwin Hill, Daniel Domkowski and Sergeant Joseph Convertito, were assigned to back up DelMonte should he need protection and, after DelMonte purchased the narcotics, to arrest the dealers.

Before the operation began, DelMonte was searched to make sure that he had no contraband or articles that would indicate that he was a police officer. Villegas then provided him with a $20 bill with which to make the narcotics purchase. The $20 bill was photocopied before they left the police station.

The team left the police station at approximately 3:30 p.m. Villegas was first to arrive in the area and parked his vehicle on Vine Street. From his location, he could see a section of Sanford Place that was not heavily trafficked. Villegas was able to monitor DelMonte's actions with binoculars.

At 3:40 p.m., DelMonte arrived and parked his vehicle in the area of 70 Sanford Place, near the middle of the block. He got out of his car and observed three men standing near a gray car across the street. These three men were later identified as the defendant, Denton Cleveland and Barrington Wilson. As he walked across the street toward the three men, Cleveland asked him, "How many do you want?" DelMonte held up four fingers and replied, "Four." Wilson then walked approximately twenty feet away and stopped in the middle of the street. At the same time, the defendant stepped onto the sidewalk. DelMonte began to follow the defendant, but Cleveland instructed him to stop. Shortly thereafter, Cleveland instructed DelMonte to follow the defendant. The two proceeded to a hollow steel pole connected to a chain-link fence. The pole had an opening on top. The defendant reached into the pole and pulled out a medium size clear plastic bag. Inside this bag were several smaller bags containing a white powdery substance. The defendant pulled out four of the smaller bags, each containing a white powdery substance, and handed them to DelMonte. In exchange, DelMonte gave the defendant the $20 bill that had been photocopied. The defendant then handed DelMonte an extra bag and said, "This one's on me." DelMonte put the bags he had purchased in his pocket, returned to his car and drove away. As he left, he broadcast a description of the three suspects over his car radio.

After DelMonte drove away, the backup team converged on the area to arrest the suspects. When they arrived, they observed the three suspects standing by the gray car. Wilson fled when he saw the police and was not caught. The defendant and Cleveland, however, were arrested at the scene. A search of the area produced no additional narcotics. At the police station, the defendant was found to be in possession of the $20 bill that had been photocopied.

DelMonte turned over the five bags he had purchased to Villegas. A field test of one of the bags produced a positive result for the narcotic cocaine. Subsequently, the five bags were taken to the state toxicology laboratory for additional testing where it was determined that the total weight of powders from all five bags was 270 milligrams. The test results further revealed that the five plastic bags contained cocaine.

I

In the defendant's first claim, he argues that his convictions for the sale of a narcotic substance and for possession of a narcotic substance with intent to sell, both in violation of General Statutes § 21a-278(b), violated his right against double jeopardy under the federal and state constitutions. The defendant cannot prevail in his double jeopardy claim for three reasons: (1) the defendant's constitutional right against double jeopardy was not violated, (2) the merger doctrine is inapplicable and (3) the actual evidence test is inapplicable.

The defendant's claim is unpreserved as he did not raise the claim at trial. He now argues that his unpreserved claim is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). A defendant can prevail on an unpreserved claim only if "all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id., at 239-40, 567 A.2d 823. The defendant's claim fails to satisfy the third prong of Golding.

A

The double jeopardy clause embodies three protections. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The defendant's claim in the present case rests on that aspect of double jeopardy that prohibits multiple punishments for conviction of a single offense. In this context, double jeopardy protection " 'is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.' " State v. Delgado, 19 Conn.App. 245, 250, 562 A.2d 539 (1989). Thus, the determinative question is whether the legislature intended the offenses at issue to be separate. Id., at 251, 562 A.2d 539. "The issue, though essentially constitutional, becomes one of statutory construction." State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985).

In order to prevail on his claim, the defendant must show (1) that the charged offenses arose out of the same act or transaction, and (2) that the two convictions are in reality the same offense. Multiple punishments are forbidden only if both conditions are met. State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989); State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986).

For the first prong of the analysis of the defendant's claim, it is necessary to review the information and the bill of particulars. In this case, the first count of the amended information alleged that the defendant sold cocaine to an undercover police officer on May 26, 1992, at approximately 3:40 p.m., in the area of 60 Sanford Place in Bridgeport. The second count alleged that the defendant possessed cocaine with the intent to sell at the same time and place as is alleged in the first count. As the offenses were alleged to have been committed at the same time, on the same date and in the same location, the charged offenses arose out of the same transaction. See State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985).

With regard to the second prong of the analysis, the defendant must demonstrate that the two convictions are in reality the same offense. "The test for determining whether two charged offenses constitute the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)." State v. Woodson, 227 Conn. 1, 8, 629 A.2d 386 (1993). "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, supra, ...