State v. Walton, s. 14701

CourtSupreme Court of Connecticut
Citation227 Conn. 32,630 A.2d 990
Decision Date03 August 1993
Docket NumberNos. 14701,14703,14702,s. 14701
PartiesSTATE of Connecticut v. Scott WALTON. STATE of Connecticut v. Aubrey JOHNSON. STATE of Connecticut v. Robert WALTON.

Neal Cone, Asst. Public Defender, with whom, on the brief, was Carolyn M. Jones, certified legal intern, for the appellants (defendants).

Marjorie Allen Dauster, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Paul Murray, Asst. State's Atty., for the appellee (state).


BORDEN, Associate Justice.

The principal issue in these consolidated appeals is the extent to which we should recognize the principle of vicarious liability of a conspirator articulated in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The defendants, Scott Walton, Aubrey Johnson and Robert Walton, appeal 1 from judgments of conviction, after a joint jury trial, of various narcotics offenses. Specifically, Scott Walton appeals from the judgment of conviction of one count of possession of narcotics with intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278(b), and one count of conspiracy to distribute narcotics, in violation of General Statutes §§ 53a-48(a) and 21a-277(a). 2 Robert Walton and Aubrey Johnson appeal from judgments of conviction of one count each of conspiracy to distribute narcotics, in violation of General Statutes §§ 21a-277(a) and 53a-48. See footnote 2.

Scott Walton claims that the trial court improperly instructed the jury that he could be convicted of the substantive offense of possession of narcotics with intent to sell by a person who is not drug-dependent on the basis of conduct committed by his coconspirators in furtherance of the conspiracy with which he was charged. All three defendants claim that the trial court improperly: (1) denied their motions for separate trials; (2) admitted expert testimony on an ultimate question for the jury; (3) instructed the jury regarding its duties; (4) exercised its discretion by permitting the state to mark certain evidence for identification before it was to be admitted into evidence; (5) instructed the jury regarding the element of possession; and (6) instructed the jury regarding certain prior inconsistent statements made by the state's witnesses. We affirm the judgments.

The jury could reasonably have found the following facts. The defendants were engaged in the trafficking of street drugs, during which the bulk of the drugs was stored in a three-family house located at 284-86 Enfield Street, Hartford. From late September, 1988, through January, 1989, Hartford police department detectives Michael Manzi and Jose Morales conducted a total of approximately fifteen undercover surveillances of the house. During each surveillance, there was a group of young males in front of the house. As a car or pedestrian would stop in front of the house, one of the group would run to the car or person and exchange small packets of street drugs for money. Among this group were the three defendants and a codefendant, Rodney Kelley. 3

Manzi saw Robert Walton on approximately nine of the fifteen surveillance occasions. Robert Walton would give signals to drug customers in cars, such as pointing to his nose or giving a "high five" sign, approach the cars, hand drugs through the windows and take money from the customers. During the surveillances, he approached drug customers and made drug sales approximately thirty-five times.

On approximately twelve occasions, Johnson engaged in the same drug activity as Robert Walton. Scott Walton, who lived on the second floor of the house with his mother, who owned the building, engaged in the same drug activity as Robert Walton and Johnson on approximately twelve occasions. In addition, Scott Walton would follow Kelley, Robert Walton and Johnson to cars to oversee the drug sales. Scott Walton was often on the porch of the house, and went in and out of the front door more often than the other three. Individuals would walk up to Scott Walton on the porch and converse with him, and when they returned to the street, he would enter the house. Neither Lenwood Huff, Jr., nor Janet Franklin; see footnote 3; was observed during any of the surveillances. John T. Kennedy, 4 who was the lessee of the first floor apartment in the house, was present during two or three of the surveillances, but did not engage in any of the drug selling.

The detectives who had conducted surveillances secured a search warrant for the house and, together with approximately ten other detectives, executed the warrant on January 21, 1989. After knocking on, then breaking in the door, Manzi observed Huff in the kitchen of the first floor apartment holding what appeared to be a firearm. When Huff fled, Manzi and another detective pursued him. Huff was seized, and it was determined that he had been holding a television remote control device. As Manzi pursued Huff, he saw several people in a television room, and Manzi saw Scott Walton place an item underneath a sofa cushion on which Scott Walton was sitting. Manzi also saw someone place something on a coffee table in the middle of the room.

In the television room were the three defendants, Rodney Kelley; see footnote 3; and Franklin and Kenneth Jewell. 5 The sofas and chairs were arranged in a circle around a coffee table, so that all six of the people could reach the coffee table from where they were sitting. On the coffee table was a white, upright, open, plastic shopping bag containing: (1) approximately $2000 in cash; (2) a clear, open, plastic bag containing twelve grams of 84.7 percent pure cocaine, which was in the process of being packaged for distribution; and (3) several one ounce plastic bags containing cocaine. Also on the coffee table were numerous one ounce size plastic bags, the smaller of which weighed between three grams and six and one-half grams, containing 70.8 percent to 79.8 percent pure cocaine. There were forty-three bags of cocaine in all. The street value of the cocaine on the coffee table was approximately $30,000.

The detectives searched the television room and the persons in it. They found a loaded .45 caliber automatic pistol under the cushion where Scott Walton had been sitting. On Johnson's person, the detectives found a paging beeper, which is frequently used to facilitate drug sales over the phone, and $1700 in cash. On Robert Walton, they found two $100 bills; on Scott Walton, $350 in cash; and on Kelley, $200 in cash.

The detectives also searched a locked bedroom containing the personal effects of Kennedy. This search yielded a wrapped package of cocaine, weighing almost one kilogram, several guns and $5000 in cash. This cocaine was 83.4 percent pure, and had a street value of approximately $100,000.


We first consider Scott Walton's challenge to his conviction of one count of possession of narcotics with intent to sell by a person who is not drug-dependent. He claims that the trial court, by instructing the jury regarding that offense in accordance with the vicarious liability principles of Pinkerton v. United States, supra, "wrongly expanded the liability of a conspirator, violating state 6 and federal constitutional guarantees of due process 7 and protection from double jeopardy." We disagree.

This claim arises in the following context. In the first count of the information filed against him, the state charged that "at the City of Hartford on or about the 21st day of January, 1989, at approximately 1:15 P.M., at or near the first floor of 286 Enfield Street ... Scott Walton did possess a narcotics [sic] substance, to wit: cocaine, with the intent to sell, and that the said Scott Walton was not, at that time, a drug dependent person, in violation of Section 21a-278(b) of the General Statutes."

In the second count, the state charged Scott Walton with conspiracy to distribute narcotics in violation of General Statutes §§ 21a-277(a) and 53a-48(a). This count alleged that "at the City of Hartford, on or about the 1st day of December, 1988, thru [sic] the 21st day of January, 1989 ... Scott Walton did, with the intent that conduct constituting the crime of DISTRIBUTION OF NARCOTICS be committed, agree with one or more persons, to wit: John Kennedy, Lenwood Huff, Janet Franklin, Kenneth Jewell, Rodney Kelley, Aubrey Johnson, Robert Walton and others unknown, to engage in and cause the performance of such conduct, and that one or more of the conspirators committed an overt act in pursuance of the conspiracy."

The information listed sixteen overt acts in furtherance of the conspiracy, five of which are relevant here. 8 Those five overt acts were: (1) Scott Walton possessed and assisted in packaging for sale a quantity of cocaine at 286 Enfield Street, first floor, on January 21, 1989; (2) Robert Walton possessed and assisted in packaging for sale a quantity of cocaine at 286 Enfield Street, first floor, on January 21, 1989; (3) Aubrey Johnson possessed and assisted in packaging for sale a quantity of cocaine at 286 Enfield Street, first floor, on January 21, 1989; (4) Kenneth Jewell possessed and assisted in packaging for sale a quantity of cocaine at 286 Enfield Street, first floor, on January 21, 1989; and (5) John Kennedy possessed more than thirty-one ounces of cocaine, with a purity in excess of 80 percent, at 286 Enfield Street, first floor, on January 21, 1989.

The trial court instructed the jury that, even if the state failed to prove beyond a reasonable doubt that Scott Walton had possessed narcotics with the intent to sell, as charged in the first count, he could be convicted under the first count if the jury found "beyond a reasonable doubt: (1) that he was a member of a conspiracy as charged in the second count; (2) that another member of that same...

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