State v. Estrada

71 Conn. App. 344

802 A.2d 873

STATE OF CONNECTICUT v. HECTOR ESTRADA

(AC 21107)

Appellate Court of Connecticut.

Argued January 15, 2002.

Officially released July 30, 2002.

Mihalakos, Dranginis, and Hennessy, Js. Pamela S. Nagy, special public defender, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Jeffrey M. Lee, assistant state's attorney, for the appellee (state).

Opinion

HENNESSY, J.

The defendant, Hector Estrada, appeals from the judgment of conviction, rendered after a jury trial, of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b),¹ sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b),² conspiracy to sell narcotics by a person who is not drug-dependent 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 General Statutes §§ 53a-48 (a) and 21a-278a (b). The judgment of the trial court is affirmed in part and reversed in part.

The defendant claims that the court improperly (1) found that there was sufficient evidence to support his conviction of sale of narcotics in violation of §§ 21a-278 (b) and 21a-278a (b), (2) found that the drugs tested by the state laboratory were the same drugs purchased by an undercover officer, (3) admitted into evidence two glassine bags that tested positive for heroin, (4) instructed the jury on the definition of sale pursuant to General Statutes § 21a-240 (50)⁴ and (5) violated his constitutional rights to be free from double jeopardy by convicting and sentencing him for two different crimes: Conspiracy to sell narcotics and conspiracy to sell narcotics within 1500 feet of a school, where he argues that the two conspiracies arose from the same incident and were the same offense for double jeopardy purposes.

The jury reasonably could have found the following facts. On July 27, 1999, an undercover officer, Edward Azzaro, a member of the statewide cooperative crime control task force, posed as a drug addict as part of an undercover operation to buy illegal narcotics. As part of this operation, Azzaro, dressed in street clothing, was given two ten dollar bills and was driven in an unmarked police vehicle to a location a short distance away from Poplar Street and Grand Avenue in New Haven.⁵ The target of the undercover operation at Poplar Street and Grand Avenue was a suspected drug dealer named Wilfredo Rivera, who was known frequently to wear a blue shirt with a large star on it. When Azzaro arrived at the surveillance area, he did not see Rivera, but he did see the defendant exiting a store on the corner of Poplar and Grand. The two men made eye contact, and the defendant asked Azzaro, "How many do you want?" Azzaro interpreted the question to mean how many individually wrapped pieces of narcotics did he want to purchase. Azzaro responded, "Two." The defendant then offered to give Azzaro a "deal" by selling him a "bundle," which is normally ten to fifteen pieces of individually wrapped cocaine or heroin, for sixty dollars. Azzaro responded that he had only twenty dollars. The defendant replied that that was not enough and said that he would be around for an hour.

After their conversation ended, Azzaro walked down Grand Avenue, toward a prearranged pickup area. As he was walking, he saw the target of the surveillance, Rivera. Rivera and Azzaro made eye contact. Rivera asked Azzaro if he wanted "dope," a street term for heroin, to which Azzaro replied affirmatively. Rivera then said, "Yes," and gestured for Azzaro to follow him back toward Poplar Street. As the two walked back toward Poplar Street, Rivera was looking around in a manner that led Azzaro to believe that Rivera was searching for someone. Rivera began to walk down a side street, but stopped when he saw the defendant. Rivera then changed direction and began to walk ahead of Azzaro toward the defendant. Rivera walked up to the defendant, and the two walked side by side for a few seconds. The detectives, who were videotaping Azzaro, Rivera and the defendant, caught on film the defendant's right hand pass next to Rivera's left hand. The videotape also showed that prior to this, Rivera was swinging his arms with his hands open.

At trial, Azzaro testified that he believed that the defendant had given Rivera narcotics during that "contact," even though he did not personally witness the transfer of narcotics from the defendant to Rivera, and did not know if Rivera possessed drugs when he first encountered him. After Rivera's left hand passed next to the defendant's right hand, Rivera immediately turned around, and Azzaro saw two glassine bags in Rivera's left hand where previously he had seen none. Rivera handed Azzaro the bags, and Azzaro gave him the twenty dollars. Inside the bags was a white powdery substance that later tested positive for heroin.

The videotape revealed that, as Azzaro was leaving the area, Rivera walked back to the defendant and, after briefly talking to him, took money out of his pants pocket and tried to give some of it to the defendant. The defendant did not take the money, but gestured for Rivera to follow him around the corner to the side of a building. The defendant was not arrested that day.

The area of Poplar Street and Grand Avenue where the defendant, Rivera and Azzaro exchanged the heroin was less than 400 feet from the real property comprising a public elementary school. Additional facts will be set forth as necessary.

I

The defendant first argues that the court improperly found that sufficient evidence existed to convict him of sale of narcotics in violation of §§ 21a-278 (b) and 21a-278a (b). Specifically, the defendant claims that the court improperly denied his motion for a judgment of acquittal because the evidence presented at trial was insufficient to prove beyond a reasonable doubt that there was a delivery of drugs from the defendant to Rivera and an exchange of money from Rivera to the defendant. We disagree.

Initially, we note that to the extent that this sufficiency claim is unpreserved at trial, it is reviewable pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁶ "Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant's federal constitutional right not to be convicted of a crime upon insufficient proof.... Our Supreme Court has stated that Jackson v. Virginia, [443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)], compels the conclusion that any defendant found guilty on the basis of insufficient evidence has been deprived of a constitutional right, and would therefore necessarily meet the four prongs of Golding." (Citation omitted; internal quotation marks omitted.) State v. Jefferson, 67 Conn. App. 249, 254, 786 A.2d 1189 (2001), cert. denied, 259 Conn. 918, 791 A.2d 566 2002. Thus, we conclude that there is no practical reason for engaging in a Golding analysis of a claim based on the sufficiency of the evidence, and we will thus review the defendant's challenge to the sufficiency of the evidence as to his conviction of sale of narcotics in violation of §§ 21a-278 (b) and 21a-278a (b) as we do any properly preserved claim. See id.

"In reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury's verdict.... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.... The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... In this process of review, it does not diminish the probative force of the evidence that it consists ... of evidence that is circumstantial rather than direct." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Lewis, 67 Conn. App. 643, 646, 789 A.2d 519 (2002).

Construing the evidence in the light most favorable to sustaining the verdict, we conclude that despite the fact that Azzaro did not testify that he saw the defendant actually hand the narcotics to Rivera, the jury reasonably could have inferred from the videotape of the "contact" between Rivera's left hand and the defendant's right hand, which also showed the appearance of two glassine bags in Rivera's hand immediately after the "contact," that the defendant had given Rivera the two glassine bags that later tested positive for heroin, and that this and other evidence was sufficient to establish the defendant's guilt beyond a reasonable doubt. The lack of direct evidence of the transfer does not make the jury's determination any less logical or reasonable. The circumstantial evidence of the transfer can be and is a proper basis for the jury's determination that the defendant was guilty beyond a reasonable doubt. Accordingly, the judgment is affirmed as to this claim.

II

The defendant next argues that there was insufficient evidence that the two glassine bags tested by the state toxicology laboratory were the same ones purchased by Azzaro during the undercover operation. Specifically, the defendant argues that the state did not establish a proper chain of custody to prove the identity of the bags. We are not persuaded.

Initia...