State v. Toth

• Decision Date: 24 February 1993
• Docket Number: No. 10387,10387
• Citation: 29 Conn.App. 843,618 A.2d 536
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Istvan TOTH.

Page 536

618 A.2d 536

29 Conn.App. 843

STATE of Connecticut v. Istvan TOTH.

No. 10387.

Appellate Court of Connecticut.

Argued Sept. 16, 1992.

Decided Jan. 5, 1993.

Certification Denied Feb. 24, 1993.

Elizabeth M. Inkster, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and C. Robert Satti, Jr., Asst. State's Atty., for appellee (State).

Before DALY, FOTI and LAVERY, JJ.

FOTI, Judge.

The defendant, Istvan Toth, was charged by substitute information with the crimes of possession of cocaine and heroin with intent to sell in violation of General Statutes § 21a-277(a) and conspiracy to violate the state dependency producing drug law in violation of General Statutes §§ 53a-48, 21a-277(a), and 21a-279(a) and (c). ¹ Following a jury trial, the defendant was found not guilty of the possession count but guilty of the conspiracy count. The trial court sentenced the defendant to a twelve year prison term.

In this appeal from the judgment of conviction, the defendant claims that the trial court improperly (1) denied his motion to suppress certain evidence obtained during unreasonable searches and seizures, (2) failed to define an essential element of the offense of conspiracy as it was alleged in the information, and (3) failed to define adequately the overt act element of the offense of conspiracy. We affirm the trial court's denial of the motion to suppress, but reverse the judgment of conviction on the basis of the trial court's failure to define in its jury instructions an essential element of the crime of conspiracy as it was alleged in the information.

The state's case was premised on the defendant's alleged involvement in a large-scale drug trafficking operation taking place in Bridgeport and surrounding towns. In June, 1989, a first time confidential informant advised Bridgeport police detectives Gladys Doran and Rafael Villegas that the defendant was selling heroin from various locations in Bridgeport and Stratford. The informant said he had purchased heroin from the defendant on dozens of occasions at these locations. The defendant was put under surveillance and during the week of June 11, 1989, the informant, pursuant to Doran and Villegas' instructions, went to two of the Bridgeport locations, 57 Westfield Avenue, the home of Robert Petrino, and 900 Wood Avenue, the home of Leon Goulet. At both locations, the informant purchased cocaine from Petrino. Later that week, on June 13, 1989, Doran and Villegas observed the defendant drive to 57 Westfield Avenue in a blue Oldsmobile, enter Petrino's first floor apartment, leave after five or six minutes, then drive by Goulet's home at 900 Wood Avenue, enter that home and leave shortly thereafter.

On June 20, 1989, Doran and Villegas submitted three substantially similar affidavits and applications for search warrants to the Superior Court, requesting authorization to search the defendant's person, his apartment at 28 Newport Avenue in Stratford, and his mother's blue Oldsmobile. Simultaneously, warrants were sought to search the homes of Joel Campofiore, Leon Goulet and Robert Petrino. The items sought under each warrant specifically related to the crime of possession of narcotics with intent to sell. All of the requested warrants were issued by the reviewing magistrate. ²

On June 22, 1989, Stratford and Bridgeport police officers executed a search of the defendant's apartment. They seized a small amount of marihuana from a bedroom dresser, a police scanner capable of receiving radio signals from both the Stratford and Bridgeport police departments, and two separate amounts of cash totaling approximately $2400 and $52.

On June 22 and June 27, 1989, Fairfield police conducted drive-by surveillance of the Fairfield home of Joel Campofiore, at 74 Rhode Island Avenue. On both occasions they noticed a 1982 blue Oldsmobile registered to the defendant's mother parked in front of the residence. At trial, a neighbor testified that on several occasions he had seen the driver of a blue car stop in front of Campofiore's home, enter it, stay for about ten minutes and then leave, at times carrying something. The driver would sometimes return several hours later, reenter the house, leave again, sometimes carrying small items.

On June 29, 1989, members of the Bridgeport, Fairfield and Trumbull police departments jointly executed a search warrant at Campofiore's home. The search yielded a large quantity of drugs consisting mostly of cocaine, as well as some heroin and marihuana. The drugs were taken from a variety of locations in the home, including a stereo speaker, a kitchen cabinet, and the agitator of the washing machine. Also seized was a video tape that was later entered into evidence and shown to the jury. At the time of the search, Campofiore was arrested a few blocks from his home, and marihuana was seized from his truck.

Campofiore, who testified on behalf of the state as part of a plea bargain agreement, stated at trial that the defendant, a long time friend, had a key to the Rhode Island Avenue home because he kept his motorcycle there. He also testified that all of the drugs seized during the search of that home belonged to the defendant, who had put them there, and that he, Campofiore, was trying to sell the drugs for the defendant. Campofiore admitted to using cocaine supplied by the defendant and testified that the defendant told him that he could supply Campofiore with heroin. The defendant, Campofiore testified, was a heroin addict who supported his habit by selling drugs.

The video tape seized by police during the search of Campofiore's home recorded a meeting between the defendant, Campofiore and Joseph Mandel. The meeting was recorded by Campofiore and took place five or six months before the house was searched. The tape shows Campofiore explaining that he and the defendant would give Mandel $500 worth of drugs to sell every week and that Mandel could keep $100 and return $400. During this conversation, the defendant is seen nodding his head up and down. The film shows the defendant leaving, and then Campofiore and Mandel snorting cocaine that Campofiore testified the two had obtained from the defendant.

During the search of Campofiore's home, Bridgeport police detectives Villegas and William Perez observed the defendant drive up to the house. As he approached, he stopped suddenly, backed up and sped away. The officers, with strobe lights and sirens on, gave chase, but lost sight of the defendant as they approached an entrance ramp to Interstate 95. Soon after, the defendant was stopped by Bridgeport police. Pursuant to separate warrants, both the defendant and his mother's car were searched. Nothing was taken from the car; $497 was taken from the defendant's person.

I

We first address the propriety of the trial court's denial of the defendant's motion to suppress evidence seized pursuant to search warrants executed on June 22 and June 29, 1989. The defendant claims that the trial court incorrectly ruled that the warrant affidavits established probable cause to search, in violation of his right to be free from unreasonable search and seizure under the fourth and fourteenth amendments to the United States constitution ³ and article first, § 7, of the Connecticut constitution. ⁴ Specifically, the defendant claims that the warrant affidavits, which relied largely on information obtained from confidential informants, including a first time confidential informant, were fatally flawed by the absence of any reference to the informants' bases of knowledge and reliability, and are thus based on "mere suspicion." As such, the defendant claims, they cannot pass constitutional muster under the "totality of the circumstances" standard set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by our Supreme Court in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). The defendant properly preserved this claim for appellate review.

We first set forth the standard applicable to review of the magistrate's probable cause determination. "When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant's knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the 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 issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories." State v. Barton, supra, at 544-45, 594 A.2d 917. On the other hand, "[i]f a warrant affidavit does not provide a substantial basis for the finding of probable cause, then evidence or contraband seized in the execution of that warrant will be suppressed, even when the officer executing the warrant has...