This is an amended petition for a new trial filed January 22, 2009. The petitioner, Troy S. Thomas, alleges that “uncharged misconduct” witnesses (Detectives Nathaniel Ortiz and Alfred Henderson) engaged in criminal activity resulting in subsequent arrests and convictions, which, at a new trial, would be used to impeach their testimony. It is also asserted that such information is newly discovered, could not have been discovered earlier by the exercise of due diligence, is material, not merely cumulative, and likely to produce a different result upon retrial.
The petitioner was tried to a jury on a four count information charging possession with intent to sell narcotics (cocaine), General Statutes § 21a–278 (b); possession with intent to sell a controlled substance (cocaine) within 1500 feet of a school, General Statutes § 21a–278a (b); possession of narcotics (cocaine), General Statutes § 21a–279 (a); and possession of narcotics (cocaine) within 1500 feet of a school, General Statutes § 21a–279 (d). Evidence commenced on September 22, 2004, and on September 24, 2004, the jury returned a verdict of guilty on all four counts.
The conviction was affirmed by the Connecticut Appellate Court on July 18, 2006. State v. Thomas, 96 Conn.App. 578, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006).
The facts upon which the guilty verdict was predicated are set forth, as follows, in the opinion of the Appellate Court:
“On July 23, 2003, at approximately 7:30 p.m., after receiving numerous calls concerning illegal drug activity outside 57 Belden Street in Hartford, members of the Hartford police department's vice and narcotics unit engaged in a surveillance of that location. The building at 57 Belden Street is within 1500 feet of Thomas J. Quirk Middle School, a public secondary school at which the [petitioner] was not a student. Among those conducting the surveillance were Officer Anthony Martinez and Detective Deborah Scates, who watched the front of the 57 Belden Street building from a parked, unmarked car approximately 100 yards away. Martinez and Scates observed three men, later identified as Craig Counsel, Julian Bernie, and the [petitioner] standing outside that location. Counsel, Bernie and the [petitioner] were all approached, approximately ten times during the course of the surveillance, by what appeared to be drug-dependent individuals. Each individual who approached the three men would engage in a brief conversation with them outside the building and then would be escorted into the building by one of the three men, while the other two men remained outside as lookouts. Counsel, Bernie and the [petitioner] would take turns taking the individuals into the building or acting as lookouts. The [petitioner] entered the building twice with suspected drug-dependent individuals.
“On the basis of their training and experience, Martinez and Scates believed that the three men were using the hallway of 57 Belden Street to conduct narcotic sales and, therefore, sent a radio transmission to the other unit members to ‘move in.’ Upon approaching the [petitioner], Martinez saw him throw a plastic bag containing a white rock like substance underneath a motor vehicle. A chemist with the state toxicology laboratory later determined the substance thrown to be 25.1 grams of cocaine.
“At the time of arrest, the [petitioner] had $25 on his person, Counsel had $170 on his person and Bernie had $352 on his person. Additionally, Bernie dropped bags of narcotics when he stood up. Martinez and Scates testified that some drug dealers have one person hold the drugs and another hold the cash to minimize profit loss if they are stopped by police.” Id., at 579–81, 901 A.2d 76.
In his direct appeal, the petitioner challenged the admission of “uncharged misconduct” evidence at his trial. Accordingly, the Appellate Court opinion details additional facts relevant to its resolution of that appellate issue, as follows:
“The state filed a motion to introduce prior misconduct, and a hearing was held on that motion.... The [trial] court granted the state's motion, allowing the admission of two incidents of uncharged misconduct.
“Detective Alfred Henderson, with the major crimes division of the Hartford police department, testified concerning a February, 1999 incident. He testified that on February 19, 1999, at approximately 6:30 p.m., while he was checking the hallways of 57 Belden Street for illegal drug activity, he observed the [petitioner] standing in the hallway staring at the palm of his hand. In his hand, the [petitioner] was holding a plastic bag containing a white rock like substance, which Henderson immediately identified as crack cocaine and which later tested positive for cocaine. Henderson asked the [petitioner] to give him the plastic bag, and the [petitioner] complied. The [petitioner] also had $45 on his person. The [petitioner] and Henderson engaged in a conversation and the [petitioner] responded that ‘he was selling to stay alive.’ The [petitioner] told Henderson that the crack cocaine was worth approximately $200, and Henderson testified the amount of crack cocaine in the plastic bag was more than an amount typically carried for personal use.
“Detective Nathaniel Ortiz, with the Hartford police department's vice and narcotics division, testified concerning an incident that occurred on December 17, 2003. In response to numerous complaints from the property owner and residents, Ortiz and fellow officers executed a search and seizure warrant for 59 Belden Street, identifying Counsel as one of the targets and the [petitioner] as one of the associates. After announcing their presence and receiving no answer, the police forced entry into two apartments simultaneously. The [petitioner] and Counsel, who were in one of the subject apartments, left that apartment via the fire escape and attempted to enter the other apartment, but were detained by the police. The [petitioner] had a couple of 8–balls, which were one-eighth ounce chunks of crack cocaine, and $197 on his person. Ortiz testified that an 8–ball is not for personal use and that street level drug dealers usually will carry at least one 8–ball and break off chunks to sell individually.” Id., at 581–82, 901 A.2d 76.
Regarding cautionary instructions relating to the admission of the “other crimes” evidence, the Appellate Court opinion indicates:
“During preliminary instructions to the jury, the court stated that some evidence might be admitted for a limited purpose only. After Ortiz testified, the court instructed the jury that his testimony was admitted for a limited purpose. The court instructed that his testimony was not being admitted to prove the bad character of the [petitioner], but could be considered only for the following limited purposes: (1) to show or establish the alleged intent of the [petitioner] to sell a controlled substance, namely, cocaine, which is an element of one of the crimes charged, (2) to show or establish that the [petitioner] knowingly possessed a narcotic substance, namely, cocaine, which is an element that the state must prove with respect to three of the crimes with which he is charged in this particular case and (3) to show or establish that the [petitioner's] presence at the scene of the alleged crimes was not merely coincidental, but rather that he was intentionally engaging in a system of criminal activity at that location. The court gave a similar limiting instruction at the conclusion of Henderson's testimony. At the close of evidence, the court again instructed the jury that the testimony of Ortiz and Henderson was not admitted to prove the [petitioner's] bad character or propensity to commit criminal acts, but was admitted for three limited purposes, which the court reiterated.” Id., at 582–83, 901 A.2d 76.
The state's pretrial motion to introduce uncharged misconduct evidence was heard September 15, 2004. The state argued the marked similarities between the case about to go to trial and the two instances of uncharged misconduct: two of the three cases occurred at 57 Belden Street, and the third at 59 Belden; all three involved crack cocaine similarly packaged; and in two of the three cases, the petitioner was arrested with the same person, Craig Counsel. It was the state's contention that the similarities were indicative of common scheme or plan; further, that the two uncharged incidents tended to show the required intent to sell in the case to be tried, as well as knowledge that the substance was, in fact, cocaine.
The defense maintained that the uncharged matters were not sufficiently similar 1 and that the 1999 incident would not be probative of intent and knowledge due to remoteness.2 It was the defense position that the potential prejudicial impact of the uncharged misconduct evidence outweighed its probative value in that, notwithstanding any cautionary instruction, the evidence might well be considered by the jury as indicative of the petitioner's bad character and propensity for criminal conduct.
The court, finding that probative value outweighed prejudicial effect, granted the state's motion,3 observing that the state had to rely on circumstantial evidence to establish the elements of specific intent and knowledge (content of discarded bag); additionally, the state had to show the petitioner's purpose while in front of 57 Belden Street (the building in which he resided) at the time of the underlying incident. With respect to a limiting instruction, it was stated: “I will be instructing the jury that they are to consider it solely for...
