State v. Smith

• Decision Date: 02 September 2008
• Docket Number: No. 27762.,27762.
• Citation: State v. Smith, 110 Conn. App. 70, 954 A.2d 202 (Conn. App. 2008)
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Chevol A. SMITH.

954 A.2d 202

110 Conn.App. 70

STATE of Connecticut v.Chevol A. SMITH.

No. 27762.

Appellate Court of Connecticut.

Argued May 19, 2008.

Decided September 2, 2008.

David B. Rozwaski, special public defender, for the appellant(defendant).

Michael Proto, deputy assistant state's attorney, with whom were Michael E. O'Hare, supervisory assistant state's attorney, and, on the brief, Michael Dearington, state's attorney, and Alison Thomas Flood, deputy assistant state's attorney, for the appellee(state).

BISHOP, LAVINE and ROBINSON, Js.

ROBINSON, J.

The defendant, Chevol A. Smith, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent as an accessory in violation of General Statutes §§ 53a-8and21a-278(b), sale of narcotics within 1500 feet of a school as an accessory in violation of General Statutes §§ 53a-8and21a-278a(b), possession of narcotics in violation of General Statutes § 21a-279(a) and possession of narcotics within 1500 feet of a school in violation of General Statutes § 21a-279(d).On appeal, the defendant claims that (1) the evidence was insufficient to sustain his conviction, (2)the state engaged in prosecutorial impropriety¹ during closing arguments thereby depriving him of his due process right to a fair trial, and (3) the identification of the defendant through the use of a prior police photograph was prejudicial to his right to a fair trial.We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts.On May 31, 2005, Mark Grandpre, a detective with the statewide cooperative crime control task force, was working undercover in the Arthur Street area of New Haven.He observed two men who were later identified as Joseph Harris and the defendant.Grandpre made eye contact with Harris, who entered his vehicle and instructed Grandpre to drive around the block.During the drive, Harris and Grandpre negotiated a drug deal for crack cocaine, eventually settling on the sale of three bags for $40.After the negotiations concluded, Harris gave Grandpre two clear plastic bags of a substance later identified as crack cocaine.He then instructed Grandpre to stop the car at the intersection of Rosette Street and Dewitt Street.²

After the car was stopped, Harris called over the same individual who Grandpre previously had observed with Harris before he entered the vehicle.The man, who Harris referred to as "Stutter," and was later identified by Grandpre as the defendant, provided a third bag of crack cocaine; this one, however, was made of red plastic.Grandpre then paid $40 to Harris in exchange for the three bags.The entire transaction was videotaped by a hidden video camera inside the vehicle, but, due to the camera's angle, only the hand of the defendant was visible.

No arrests were made on May 31, 2005, to preserve Grandpre's undercover status.Over the next several weeks, Grandpre circulated still photographs of Harris in the New Haven police department and sought to identify the man known as "Stutter."An officer recognized the street name "Stutter" and showed Grandpre a photographic array that included an arrest photograph of the defendant.On the basis of his observations prior to picking up Harris, as well as his observations during the transaction itself, Grandpre identified "Stutter" as the man in the photograph.Quincy Freeman, a New Haven police officer, also identified the defendant as the man known as "Stutter" and further stated that he knew no one else by that moniker.

On the basis of the preceding facts, the defendant was charged in a four count information with (1) sale of narcotics by a person who is not drug-dependent, (2) sale of narcotics within 1500 feet of a school, (3) possession of narcotics and (4) possession of a narcotics within 1500 feet of a school.On March 9, 2006, after a jury trial, the defendant was found guilty on all four counts.³On May 18, 2006, the court imposed a total effective sentence of eleven years, suspended after eight years, with three years probation.On June 19, 2006, the court subsequently modified the defendant's sentence resulting in a total effective sentence of twelve years, suspended after five years, five months, with three years probation.This appeal followed.Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence was insufficient to sustain his conviction.Specifically, he argues that there was insufficient evidence to prove (1) his identity as the second participant in the drug transaction and (2) that he had the requisite intent as an accessory.We are not persuaded.

"The standard of review employed in a sufficiency of the evidence claim is well settled.[W]e apply a two part test.First, we construe the evidence in the light most favorable to sustaining the verdict.Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt."(Internal quotation marks omitted.)State v. Green,261 Conn. 653, 667, 804 A.2d 810(2002).

"It is within the province of the jury to draw reasonable and logical inferences from the facts proven....The jury may draw reasonable inferences based on other inferences drawn from the evidence presented....Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable....It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned....It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence."(Internal quotation marks omitted.)State v. Sanchez,75 Conn.App. 223, 238-39, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769(2003).

"[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence ... established guilt beyond a reasonable doubt....Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt....We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record."(Internal quotation marks omitted.)State v. Davis,68 Conn. App. 794, 798, 793 A.2d 1151, cert. denied, 260 Conn. 920, 797 A.2d 518(2002).Furthermore, "[i]n our review of the evidence to determine its sufficiency, we do not look at the evidence to see whether it supports the defendant's innocence....Instead, our focus is whether there is a reasonable view of the evidence that supports the [trier's] verdict of guilty."(Citation omitted; internal quotation marks omitted.)State v. Farnum,275 Conn 26, 36, 878 A.2d 1095(2005).Guided by these principles, we now turn to the defendant's specific claims.

A

The first argument posed by the defendant is that the evidence adduced at his trial was insufficient to establish his identity with respect to the charges stemming from the drug transaction.On the basis of our review of the record, we conclude that sufficient evidence existed from which the jury could find that the defendant was the second participant.

"It is black letter law that in any criminal prosecution, the state bears the burden of proving beyond a reasonable doubt the defendant's identity as one of the perpetrators of the crime charged."State v. Smith,280 Conn. 285, 302, 907 A.2d 73(2006).In the present case, the defendant argues that the state presented insufficient evidence to link him to the transaction.Specifically, the defendant contends that Grandpre had limited time to observe him and was preoccupied during that limited time with other tasks.The defendant also maintains that Grandpre was not previously familiar with him and that the passage of several weeks before the identification made Grandpre's subsequent identification suspect.Furthermore, the defendant refers to Grandpre's inability to provide specific identifying characteristics during his testimony.He also emphasizes the testimony of Harris, who repeatedly testified that he did not know the defendant and that he had acted alone during the transaction.

The jury logically and reasonably could have concluded that the defendant was the second participant involved in the drug transaction on the basis of the testimony of Grandpre.Grandpre, a trained undercover narcotics officer, testified that he was patrolling the area with the specific purpose of locating and identifying drug dealers.Grandpre testified that during his patrol, he had observed the defendant on two separate occasions.The first was when Grandpre was driving and the defendant and Harris were walking toward him on the right side of the street.Grandpre was close enough to both men to be able to establish eye contact and to signal his intention to purchase narcotics.The second observation was made when the defendant approached the passenger window of Grandpre's stopped vehicle.At this time, the defendant was close enough to Grandpre that the defendant's hand was visible on the hidden camera film depicting the events inside the vehicle.Our Supreme Court has stated that "when determining whether a witness had sufficient time to observe a defendant to ensure a reliable identification ... a good hard look will pass muster even if it occurs during a fleeting glance....In particular, we have recognized that a view of even a few seconds may be sufficient for a witness to make an identification ... and that it is for...