State v. Hicks

56 Conn. App. 384

743 A.2d 640

STATE OF CONNECTICUT v. ANTHONY HICKS

(AC 17854)

Appellate Court of Connecticut.

Argued October 27, 1999.

Officially released January 18, 2000.

Lavery, Hennessy and Vertefeuille, JS.

Michael A. D'Onofrio, special public defender, for the appellant (defendant).

Margaret Gaffney Radionovas, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the appellee (state).

Opinion

LAVERY, J.

The defendant, Anthony Hicks, appeals from the judgment of conviction, rendered after a jury trial, of sale of a narcotic substance in violation of General Statutes § 21a-277 (a).¹ The defendant claims that (1) the evidence was insufficient to support his conviction and (2) the prosecutor committed misconduct during closing argument. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of December 12, 1995, the Connecticut state police statewide narcotics task force coordinated a plan with the Bristol police department to purchase crack cocaine from the defendant. Detective Matthew Barnwell of the task force telephoned the defendant at a number listed in the defendant's name. A male whose voice Barnwell did not recognize answered the telephone. Barnwell asked if he could purchase crack cocaine and was told, "No problem, come on by." Barnwell drove to the defendant's residence and wore a body wire so that officers assisting him could hear Barnwell.

Barnwell knocked on the door, and a Hispanic female let him into the apartment. Inside, Barnwell observed the defendant sitting on a couch using a telephone. Barnwell acknowledged the defendant, who responded, "Huh," and made a hand signal. The defendant motioned to the female, who then went to a coffee table in front of the defendant, opened the table's doors and removed a plastic bag containing small plastic bags with a white, rock-like substance inside. The female then handed the bag to the defendant. The defendant, in turn, removed two of the smaller bags containing the white, rock-like substance and gave them to Barnwell. Barnwell then paid the defendant $100. Officers at the scene field tested the substance, which showed a positive result for the presence of cocaine.

I

The defendant claims that there was insufficient evidence to establish beyond a reasonable doubt that he transferred and sold crack cocaine to the undercover detective in violation of § 21a-277 (a). We disagree.

The defendant acknowledges that he failed to preserve his claim of evidentiary insufficiency but, as an alternative to proper preservation, requests review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).² "Our Supreme Court, following the dictate of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), has held 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.' State v. Adams, 225 Conn. 270, 276 n.3, 623 A.2d 42 (1993)." State v. Patterson, 35 Conn. App. 405, 411 n.7, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). Accordingly, we conclude that no practical reason exists to engage in a Golding analysis of a sufficiency of the evidence claim and, thus, review this challenge as we do any other properly preserved claim. See id.

General Statutes § 21a-240 (50) defines sale, insofar as it applies to illegal drug transactions, as "any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee...."The definition of sale is quite broad and intended to encompass a variety of situations. See State v. Avila, 166 Conn. 569, 580 n.1, 353 A.2d 776 (1974).

The defendant relies on State v. Mierez, 24 Conn. App. 543, 550-54, 590 A.2d 469, cert. denied, 219 Conn. 910, 593 A.2d 136 (1991), in which this court held that the evidence presented was insufficient to sustain a conviction because of the lack of evidence of a sale or transmission of narcotics by the defendant. In Mierez, the defendant was observed by police performing what appeared to be narcotics transactions on a sidewalk curb. Id., 546. Two or three times, the defendant was observed approaching stopped cars and exchanging unidentifiable small items with the drivers. Id. Police apprehended the defendant and found a white powder later determined to be narcotics in his possession. Id., 546-47.

This court overturned the conviction, stating that "[t]he officers who engaged in the surveillance of the defendant's activities described the items that they claimed were given by the defendant to others only as small objects. Likewise, they were unable to give any better description of the items that the defendant received in return. No evidence was offered to show where on his person the defendant obtained the small objects that he allegedly passed. No evidence was produced that he took these objects from the same area in the front of his pants from which the glassine bag was seized, or from the small of his back at the waistband of his trousers where the newspaper fold was located. In short, the state did not produce any evidence to connect the seized narcotics with the activities of the defendant." Id., 551-52.

Similarly, in State v. Arbelo, 37 Conn. App. 156, 655 A.2d 263 (1995), we overturned a conviction because of the absence of evidence of a drug sale. "The weakness in the state's case here is that no state's witness saw money pass from [the purported purchaser] to the defendant, nor did any state's witness see any drugs pass from the defendant to [the purported purchaser]. Additionally, there is a paucity of circumstantial evidence supporting the state's theory that the brief contact between the defendant and [the purported purchaser] resulted in a drug sale." Id., 160; see State v. Davis, 38 Conn. App. 621, 625-29, 662 A.2d 812, cert. denied, 235 Conn. 919, 665 A.2d 907 (1995) (primary flaw in state's case was that it offered no witnesses who actually saw drugs pass between alleged buyer and seller).

Significant differences exist between the facts in Mierez and its progeny and the present case. In Mierez, Arbelo and Davis, no witnesses existed who actually viewed the transmission of narcotics between one party and another. In contrast, not only did Barnwell witness the entire transaction, but he was the undercover buyer who actually purchased the narcotics. Barnwell viewed exactly what was being passed to him during the transaction, which was shown to be narcotics through various laboratory tests. See State v. Hall, 165 Conn. 599, 601-602, 345 A.2d 17 (1973) (defendant handed narcotics directly to undercover police officer).

We agree with the state that sufficient evidence exists to support the defendant's conviction. The jury reasonably could have found that the defendant's motions to the female in the room combined with her response could constitute a nonverbal command to retrieve narcotics from the coffee table. There is sufficient evidence to conclude that the female removed the drugs from the table and gave them to the defendant, who then gave them directly to the undercover detective in exchange for money. Barnwell testified that he had absolutely no doubt that it was the defendant who consummated the drug transaction. These facts and their supporting reasonable inferences constitute sufficient evidence that reasonably could lead a jury to conclude that the defendant sold the crack cocaine to Barnwell, thus meeting the requirements of § 21a-277 (a).

II

The defendant contends that the state improperly commented on the credibility of witnesses and his failure to testify such that he was deprived of his fundamental right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. We are not persuaded.

Before we address the defendant's contentions, we note that these claims of prosecutorial misconduct were not preserved at trial. Accordingly, the defendant seeks review under State v. Golding, supra, 213 Conn. 239-40.³

"[T]o deprive a defendant of his constitutional right to a fair trial ... the prosecutor's conduct must have so infected the trial with unfairness as to make the resulting conviction a denial of due process.... We do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct." (Internal quotation marks omitted.) State v. Chasse, 51 Conn. App. 345, 355, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999); see State v. Correa, 241 Conn. 322, 356-57, 696 A.2d 944 (1997).

"In determining whether this claim of prosecutorial misconduct deprived the defendant of his due process right to a fair trial, we must first decide whether the prosecutor's remarks were, in fact, improper, and, if so, whether they substantially prejudiced the defendant. State v. Provost, 49 Conn. App. 56, 64-65, 713 A.2d 879, cert. granted on other grounds, 247 Conn. 914, 722 A.2d 808 (1998); see also State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989). In doing so, we have focused on several factors, [i]ncluded among those factors are the extent to which the misconduct was invited by defense conduct or argument; State v. Falcone, 191 Conn. 12, 23, 463 A.2d 558 (1983); the severity of the misconduct; see United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) [cert. denied, 456 U.S. 989, 102 S. Ct. 2269, 73 L. Ed. 2d 1284 (1982)]; the frequency of the misconduct; State v. Couture, 194 Conn. 530, 562-63, 482 A.2d 300 (1984), ...