State v. Collins

206 Conn.App. 438

260 A.3d 507

STATE of Connecticut

v.Jiquane Chris COLLINS

AC 43030

Appellate Court of Connecticut.

Argued April 5, 2021

Officially released August 3, 2021

Freeman J. Demirjian, certified legal intern, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).

Brett R. Aiello, deputy assistant state's attorney, with whom, on the brief, were Michael A. Gailor, state's attorney, Kevin M. Shay, senior assistant state's attorney, and Jacqueline M. Fitzgerald, special deputy assistant state's attorney, for the appellee (state).

Bright, C. J., and Elgo and Clark, Js.

BRIGHT, C. J.

The defendant, Jiquane Chris Collins, appeals from the judgment of conviction, rendered by the trial court in accordance with the jury's verdict, of two counts of possession of narcotics with intent to sell in violation of General Statutes (Rev. to 2017) § 21a-278 (b). On appeal, the defendant claims that the trial court (1) improperly denied his motions for a mistrial following testimony on the ultimate issue of his intent and following testimony concerning alleged prior misconduct, and (2) erred in denying his motion to suppress evidence seized during the execution of a search warrant that had been issued without probable cause. We affirm the judgment of the trial court.

The following facts, which reasonably could have been found by the jury, and procedural history inform our review of the defendant's appellate claims. On October 10, 2017, following a narcotics investigation in which Middletown police officers twice observed the defendant sell crack cocaine to a confidential informant, the police officers applied for, and were granted, a search warrant for the defendant's Middletown apartment (apartment). Members of the narcotics unit of the Middletown Police Department executed the warrant on October 13, 2017. The police arrived outside the apartment between 6 and 6:30 p.m., where they conducted surveillance before knocking, at approximately 7:40 p.m., on the apartment door. After receiving no response to their knock, the police breached the door. The police observed a sparsely furnished and tidy apartment, and it appeared that no one other than the defendant lived there. The police detained the defendant, who had been in bed, without incident.

During their search of the apartment, the police found a large container on the kitchen table, which contained 121 bags of individually packaged crack cocaine and 14 glassine bags of heroin. The estimated street value of the crack cocaine and heroin totaled approximately $3110 and $140, respectively. The police also found many "tear bags"¹ behind an electrical outlet cover in the defendant's bedroom, and they found a razor blade with a white substance on it that later was determined to be cocaine. In addition to seizing those items, the police also seized $1524 in cash, a laptop computer, a flat screen TV, jewelry, and mail addressed to the defendant.

The defendant, thereafter, was charged with two counts of possession of narcotics with intent to sell. Following a jury trial that resulted in guilty findings, the court rendered a judgment of conviction of both counts and imposed a total effective sentence of twelve years of incarceration, execution suspended after seven years, with three years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

On appeal, the defendant first claims that the trial court improperly denied his motions for a mistrial following testimony on the ultimate issue of his intent to sell narcotics and following testimony concerning alleged prior misconduct. After setting forth our standard of review of the trial court's decision to deny a motion for a mistrial, we will address each claim in turn.

"In our review of the denial of a motion for [a] mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion." (Internal quotation marks omitted.) State v. Berrios , 320 Conn. 265, 274, 129 A.3d 696 (2016). Furthermore, "[w]hile the remedy of a mistrial is permitted under the rules of practice, it is not favored. [A] mistrial should be granted only as a result of some occurrence upon the trial of such a character that it is apparent to the court that because of it a party cannot have a fair trial ... and the whole proceedings are vitiated. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. ... On appeal, we hesitate to disturb a decision not to declare a mistrial. The trial judge is the arbiter of the many circumstances [that] may arise during the trial in which his function is to assure a fair and just outcome. ... The trial court is better positioned than we are to evaluate in the first instance whether a certain occurrence is prejudicial to the defendant and, if so, what remedy is necessary to cure that prejudice." (Internal quotation marks omitted.) State v. Ortiz , 280 Conn. 686, 702, 911 A.2d 1055 (2006).

A

We first consider whether the court improperly denied the defendant's motion for a mistrial following the testimony of Detective Nathaniel Peck. The defendant alleges that Peck opined on the ultimate issue of whether the defendant intended to sell narcotics. The defendant argues that, during trial, he did not contest the fact that he possessed narcotics; the only issue in dispute was whether he intended to sell those narcotics. The defendant contends that Peck opined on the defendant's intent in this case when Peck testified that possession of 121 individually wrapped bags of crack cocaine would be consistent with someone who is selling narcotics, rather than someone who is using narcotics. The state argues that the defendant did not object to the state's question about the 121 individually wrapped bags of crack cocaine, that the question and the answer both were in compliance with our Code of Evidence, and that Peck answered a hypothetical question posed by the state about any person , not a question about this defendant . We conclude that the court did not abuse its discretion when it denied the defendant's motion for a mistrial on the basis of Peck's testimony.

The following additional facts and procedural history are necessary to our resolution of the defendant's claim. Prior to the start of evidence, the state declared its intention to call an expert in the area of trafficking of narcotics. Specifically, on February 4, 2019, the state filed a motion in limine to permit expert testimony on the issue of whether the evidence it intended to present during its case-in-chief regarding the items seized at the apartment was consistent with mere drug usage or whether it was consistent with drug sales. In its motion, the state represented that "[t]he expert would not comment on this particular defendant's intent and indeed would not even be aware of the allegations surrounding this particular incident. Rather, such expert would testify relative as to the customs and trade practices of drug traffickers generally, which has been held by our Supreme Court to be proper .... Indeed, the expert who the state would present is not and has never been a member of the arresting agency in this case ...." (Citations omitted.) On February 25, 2019, the court granted the state's motion.

Before the start of evidence, however, the state notified the court of its intention to have Detective Peck testify as both a fact witness and its expert witness on the trafficking of narcotics. Although the defendant did not object to Peck testifying both as a fact and as an expert witness, he did object to Peck testifying to the ultimate issue of whether the defendant possessed the narcotics with the intent to sell. The trial court agreed.

As a fact witness, Peck testified about the execution of the search warrant on October 13, 2017, and what the police found at the apartment. Thereafter, the state laid a foundation to qualify Peck as an expert in the area of crack cocaine and heroin trafficking. When asked by the trial court, the defendant did not object to Peck's qualifications. As an expert witness, Peck testified about the items that crack cocaine and heroin dealers usually have in their homes, noting that dealers often have digital scales, customer lists, crack cocaine broken down into individual baggies, heroin broken down into individual glassine bags, spoons, razor blades, and money. Peck then explained that in homes of users of cocaine and heroin, police would find glass tubes with burnt ends, copper wool, torn bags, crack pipes, burnt spoons, needles, cotton, Q-tips, and straws. Peck also explained how crack cocaine and heroin are ingested.

The state then asked Peck to opine about the quantities of drugs in the possession of drug dealers versus those in the possession of drug users. Specifically, the following colloquy took place between the prosecutor and Peck:

"[The Prosecutor]: And now I'm going to ask you a series of hypothetical questions that pertain to crack cocaine. So, based on your training and experience, if you found an individual in possession of 121 individually wrapped [baggies] consisting of crack cocaine, would that be consistent, based on your training, with someone who was selling or using?

"[Peck]: That's consistent, in my opinion, with someone [who] is selling crack cocaine.

"[The Prosecutor]: And how would you make that determination?

"[Peck]: By the sheer volume of the crack cocaine as—as one, in addition to the fact that it's individually wrapped. That is typically done for prepackaged for street level sales.

"[The Prosecutor]: And how would you determine whether items seized are for personal use versus for sale?

"[Peck]: You can determine that based on what else you find in...