State v. Vasquez

• Decision Date: 09 October 2001
• Docket Number: (AC 19885)
• Citation: 783 A.2d 1183,66 Conn. App. 118
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. LUIS VASQUEZ

66 Conn. App. 118

783 A.2d 1183

STATE OF CONNECTICUT v. LUIS VASQUEZ

(AC 19885)

Appellate Court of Connecticut.

Argued September 28, 2000.

Officially released October 9, 2001.

Landau, Zarella and Daly, JS. Donald D. Dakers, special public defender, for the appellant (defendant).

Joy K. Fausey, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Michael A. Pepper, assistant state's attorney, for the appellee (state).

Opinion

DALY, J.

The defendant, Luis Vasquez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b),¹ possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b),² sale of narcotics in violation of § 21a-278 (b), sale of narcotics within 1500 feet of a school in violation of § 21a-278a (b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a)³ and 21a-278 (b), and conspiracy to sell narcotics within 1500 feet of a school in violation of §§ 53a-48 (a) and 21a-278a (b).

The defendant claims that the court improperly (1) failed to conclude that the conviction of possession of narcotics with intent to sell within 1500 feet of a school and the sale of narcotics within 1500 feet of a school violated his state and federal constitutional rights to be free of double jeopardy, (2) failed to conclude that the conviction of conspiracy to sell narcotics and conspiracy to sell those narcotics within 1500 feet of a school violated his state and federal constitutional rights to be free of double jeopardy, (3) instructed the jury that to be guilty of the sale of, possession with intent to sell or conspiracy to sell narcotics within 1500 feet of a school in violation of § 21a-278 (b) did not require an intent to sell within 1500 feet of a school and (4) failed to permit him to show that a confidential informant was the actual seller of the narcotics.⁴

The jury reasonably could have found the following facts. On August 12, 1998, at approximately 6:30 p.m., four New Haven police officers, Keith Wortz, Al Ferraro, Jose Escobar and Pat Helliger, members of the police department's narcotics enforcement unit, were traveling in an unmarked cruiser on Woolsey Street in New Haven and observed people on the porch of 72 Woolsey Street.⁵ The police recognized the defendant in an open first floor window that faced out toward the front porch and the street.⁶ The police also recognized Gregorio Santiago, who was standing on the front porch next to the window.

Wortz and Ferraro conducted surveillance nearby while the two other officers took cover in the rear seat of the unmarked cruiser. Wortz and Ferraro observed five separate instances in which individuals walked to the front of the 72 Woolsey Street porch, spoke to Santiago and handed him what appeared to be money. Santiago then went to the front window and passed the money to the defendant, who then handed something back to Santiago, who in turn passed it to the waiting individual. After viewing those transactions, the officers drove to the front of 72 Woolsey Street and exited their vehicle. Escobar went to the rear of the house while the others advanced to the front porch. Helliger detained Santiago while Wortz and Ferraro pursued the defendant. The defendant fled from the first floor room and ran upstairs. Wortz and Ferraro searched the first floor for other suspects and uncovered four white glassine bags that contained a white-brown powder-like substance.⁷ They subsequently ascended to the second floor apartment, knocked on the door and were invited in by Robin Roman, who recognized Wortz. The officers entered the apartment, and Wortz arrested the defendant who was seated on the couch. A search of the defendant uncovered nothing. At trial, Roman testified that immediately after the arrest, Wortz knocked on the door of the room occupied by Luis Rivera. She then stated that Rivera opened the door, Wortz entered the room and that she heard them laughing.

I

The defendant claims that the court improperly failed to conclude that his conviction of possession of narcotics with intent to sell within 1500 feet of a school and the sale of narcotics within 1500 feet of a school, both in violation of § 21a-278a (b), violated his state and federal constitutional rights to be free of double jeopardy. The defendant's claim was not preserved because it was not raised at trial. The defendant, however, argues that his unpreserved claim is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A. 2d 823 (1989). The defendant's claim fails to satisfy the third condition set forth in Golding because the alleged constitutional violation does not clearly exist and did not clearly deprive him of a fair trial.

"[A] defendant can prevail on a claim of constitutional error not preserved at trial 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." (Emphasis in original.) Id., 239-40. It is unnecessary for this court to review all four prongs of Golding because the defendant's claim will fail if any one of the conditions is not met. See id., 240. Therefore, this court is free to focus on and respond to the condition most relevant to the defendant's claim. See id.

The defendant's claim fails to satisfy the third prong of Golding because no double jeopardy violation exists. The defendant's claim rests on the 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.... Thus, the determinative question is whether the legislature intended the offenses at issue to be separate.... The issue, though essentially constitutional, becomes one of statutory construction." (Citations omitted; internal quotation marks omitted.) State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995).

"[T]o 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." Id. "For the first prong of the analysis of the defendant's claim, it is necessary to review the information and the bill of particulars." Id. Because all six counts of the state's information allege offenses committed on the same date, at the same time and in the same location, we conclude that the charged offenses arose out of the same act or transaction. The first prong of the analysis, therefore, is satisfied.

"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 was set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).... 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.... The Blockburger analysis focuses on the statutory elements of the two crimes and the charging documents, and precludes examination of the evidence actually presented at trial.... If each crime requires proof of a fact that the other does not, the offenses are not the same under Blockburger, notwithstanding a substantial overlap in the proof offered to establish the crimes." (Citations omitted; internal quotation marks omitted.) State v. Smart, supra, 37 Conn. App. 366.

In Smart, we noted that "[t]he offense of possession of a narcotic substance with intent to sell requires proof that the defendant possessed a narcotic substance. There is no such requirement for the offense of the sale of a narcotic substance.... Likewise, the offense of the sale of a narcotic substance requires proof of a sale. There is no such requirement for the offense of possession with intent to sell.... Therefore, under Blockburger the two offenses are not the same, nor do they stand in relation of greater and lesser included offenses." (Citations omitted.) Id., 368; see also State v. Devino, 195 Conn. 70, 75, 485 A.2d 1302 (1985) (possession of cocaine not lesser included offense of crime of sale of cocaine); State v. Brown, 163 Conn. 52, 63, 301 A.2d 547 (1972) (possession of heroin not lesser included offense of crime of sale of heroin).

Similarly, in the present case, the possession of narcotics with the intent to sell within 1500 feet of a school and the sale of those same narcotics within 1500 feet of a school are not the same nor do they stand in relation of greater and lesser included offenses. Although Smart involved a conviction under § 21a-278 and the conviction at issue in this case is pursuant to § 21a-278a, each offense requires proof of the same additional elements that were required for the conviction in Smart, as previously set forth. Therefore, under the Blockburger analysis, the defendant's claim must fail.

We further consider the question of legislative intent. "The Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative...