State v. Vessichio
| Decision Date | 26 November 1985 |
| Citation | 197 Conn. 644,500 A.2d 1311 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Anthony VESSICHIO. |
William F. Dow III, New Haven, for appellant (defendant).
Julia D. Dewey, Asst. State's Atty., with whom were Patrick J. Clifford, Asst. State's Atty., and, on brief, Arnold Markle, State's Atty., for appellee (state).
Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and STOUGHTON, JJ.
A jury found the defendant guilty of conspiracy to sell a narcotic substance; General Statutes §§ 21a-277(a) and 53a-48(a); and guilty of three counts of distributing or transporting a narcotic substance with intent to sell or dispense. General Statutes § 21a-277(a). He claims on appeal that the trial court erred: (1) in failing to instruct the jury that the state was required to prove beyond a reasonable doubt that the narcotic substance was cocaine; (2) in denying the defendant's request to charge on the lesser included offense of possession of a narcotic substance; (3) in admitting the out-of-court statements of an alleged co-conspirator; (4) in refusing to strike the testimony of the state's key witnesses whose field notes were intentionally destroyed; and (5) in admitting evidence of other crimes. We find no error.
The state's principal witness was Ellis Crawford, a Stratford policeman who, in 1979 and 1980, was working as an undercover agent for the statewide narcotics task force. Crawford, who never met the defendant, testified extensively about his purchases of cocaine, on five separate occasions, from the defendant's intermediary and alleged co-conspirator, Mark Violano. Crawford's most damaging testimony was that relating to certain statements, made to him by Violano, confirming the defendant's involvement in the illegal cocaine transactions. Crawford's testimony was corroborated in large measure by the testimony of surveillance officers who "covered" Crawford during his dealings with Violano. Violano himself did not testify at the defendant's trial.
The first purchase was made on October 29, 1979. Crawford met Violano at Soffer's Barn restaurant in New Haven, where, after testing a sample of cocaine provided to him, he agreed to purchase a quarter of an ounce for $500. Violano drove Crawford to the intersection of Glen Haven and Norwood Avenues. There, according to Crawford, Violano said the "man he purchased the drug from, his source, lives around the corner." The defendant's motor vehicle registration listed his address as 145 Glen Haven Avenue. Violano left on foot, returning in several minutes without the cocaine, explaining that his source needed more time to cut the package. While they waited, Violano told Crawford that his source was a childhood friend and described him as a "fat slob." Violano again left, on foot, and returned a few minutes later with the cocaine. In the future, Violano told Crawford, "just let [me] know, [my] source always [has] a package."
Crawford and Violano met again at the Soffer's Barn restaurant on November 27, 1979. Violano stated that "fat boy," his source, "had been dealing for a while, [was] kind of concerned about cops, [and] wouldn't sell to anyone he did not know." Violano brought Crawford to his home where, shortly thereafter, the defendant drove up in a gray van. After receiving $500 from Crawford, Violano left the house and entered the van, leaving the front passenger door open. Crawford observed through the living room window as Violano handed "what appeared to be my money to the defendant, who handed him a packet I could see." Violano then returned to the house and delivered to Crawford a packet, which Crawford tested and found to be cocaine.
Officer George Nobile, also of the statewide narcotics task force, provided surveillance and protective cover for Crawford during his dealings with Violano. On November 27, 1979, during the second transaction, Nobile placed himself where he could observe both the parking lot of Soffer's Barn restaurant and the home of Mark Violano, which was located less than one block away. He first observed the defendant drive up to Violano's house in his gray van. He saw the defendant enter the house, remain for several minutes, and then leave. He next observed Crawford arrive at Soffer's Barn restaurant and park his vehicle to await Violano. Violano soon left his house and drove to the restaurant where he met Crawford. After speaking briefly in the restaurant parking lot, Violano brought Crawford back to his house. Shortly thereafter, the defendant arrived once again in his gray van. Nobile saw Violano leave the house and enter the van, but he could not see what occurred inside. After a few minutes, Violano exited from the van, and the defendant drove away.
The third transaction took place three days later, on November 30, 1979, at Violano's residence. This time, while Crawford and Violano waited in the latter's home, the defendant drove up in a brown Ford LTD which was registered to Nancy Vessichio of the defendant's address. Crawford gave Violano $1000, Violano entered the defendant's vehicle, and he returned with half an ounce of cocaine. Violano told Crawford that he would "talk to Ant about getting a better price."
The next transaction occurred on December 11, 1979, once again at Violano's residence. Violano informed Crawford that "Ant" was going to send someone else with the cocaine, and that "Ant" was "going to be driving around the neighborhood to see if there were any cops." Soon, Claude Vergutto arrived on a motorcycle with one-half ounce of cocaine, for which Crawford paid $850. Nobile, conducting surveillance, observed the defendant in his gray van driving slowly through the neighborhood during the transaction. After Crawford left the house, Nobile saw the defendant's van pull up, and Violano and Vergutto enter.
The final transaction took place on January 10, 1980. Shortly after Crawford arrived at Violano's home, the defendant drove up in the brown Ford LTD. Crawford gave Violano $2000, and Violano went to the car and returned several minutes later with two packages of cocaine. Crawford expressed dissatisfaction with the high prices being charged and told Violano that instead of buying through him he would rather buy directly from the "source." Violano, who was temporarily unemployed, responded that he would soon be returning to work and thus "getting out of the business." According to Crawford, Violano told him "that from then on he would turn me on to Anthony; because he believed Anthony trusted me at that point." Before Crawford could make a direct purchase from the defendant, however, the investigation was terminated for lack of funding.
Additional facts will be discussed as we consider the various claims raised by the defendant.
The defendant first claims that the trial court erred by failing to instruct the jury that the state was required to prove beyond a reasonable doubt that the substance purchased by Crawford from Violano was cocaine. An essential element of the crime of transporting a narcotic substance with the intent to sell; General Statutes § 21a-277(a); is that the substance transported be a "narcotic substance" as defined in General Statutes § 21a-240(30). The defendant did not apprise the trial court of its purported failure to instruct on this element; he brings his claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). . State v. Smith, 194 Conn. 213, 217, 479 A.2d 814 (1984).
Upon review of the trial court's entire charge, it becomes apparent that the defendant mischaracterizes the instructions relating to proof beyond a reasonable doubt that the substance was cocaine. The trial court correctly charged the jury twenty-three times on the principle of reasonable doubt, and this tally does not include the court's opening instructions on the general meaning of reasonable doubt. In its charge, the trial court stated repeatedly that the defendant was accused of transporting "a narcotic substance, to wit, cocaine," in close connection with its further instructions that the state must prove each and every element of the crimes charged beyond a reasonable doubt. We simply do not agree that the jury could possibly have been misled on this point. A portion of the charge is printed in the footnote. 1
The defendant's essential complaint is that the trial court did not "define the meaning of the words narcotic substance or instruct the jury specifically that the nature of the substance was an element of the crime which the [s]tate had to prove beyond a reasonable doubt." With regard to the definition of "narcotic substance," the trial court correctly instructed the jury that "cocaine is a narcotic substance." Under our law, the jury was not at liberty to conclude otherwise. General Statutes § 21a-240(30). In this case the defendant was accused of transporting only one type of narcotic substance, cocaine, and no other. Therefore, it was unnecessary for the trial court to define "narcotic substance" as if the jury were required to determine for itself whether cocaine fell within that definition. The charge was "correct in law and adapted to the...
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