State v. Lucas

775 A.2d 0338 (Conn. 1999)

STATE OF CONNECTICUT v. KEVIN LUCAS

No. AC 19867

THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued January 18

May 8, 2001

Counsel Felix Esposito, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and Eva Lenczewski, senior assistant state's attorney, for the appellee (state).

Landau, Dranginis and Dupont, Js.

OPINION

Landau, J.

The defendant, Kevin Lucas, appeals from the judgment of conviction, rendered following a jury trial, of conspiracy to possess a narcotic substance with intent to sell in violation General Statutes §§ 53a-48 and 21a-277 (a), possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a) and possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress, (2) admitted evidence of prior uncharged misconduct, (3) permitted the prosecutor to comment on the defendant's failure to testify and (4) instructed the jury with respect to reasonable doubt. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the defendant's claims. Prior to 7 p.m. on November 24, 1997, officers from the Waterbury police department obtained two search and seizure warrants relevant to the facts at issue. One of the warrants pertained to apartment 2B at 415 Willow Street in Waterbury (Willow Street warrant), ¹ and the other pertained to a first floor rear apartment at 112-114 Cooke Street in Waterbury and to the persons of the defendant and Yolanda Crespo (Cooke Street warrant). ²

At approximately 7 p.m. on November 24, 1997, the Waterbury police were conducting surveillance of the Willow Street apartment when they observed the defendant, Crespo and Michael Davis exit the apartment and leave in a Porsche motor vehicle. The police stopped the vehicle³ and found seven glassine bags of "Death Row" heroin on the center console. Following a pat down, an officer removed a set of keys from the defendant's person. The defendant, Crespo and Davis were arrested and driven to the Cooke Street apartment, where the police executed the Cooke Street warrant.

The officers forcibly entered the Cooke Street apartment when no one responded to their knock. No one was in the apartment, and the police seized no evidence. While these events were occurring, other officers went to the Willow Street apartment to execute the Willow Street warrant. They knocked on the door and were admitted by the tenant, Michelle Yorker. One of the officers tested the keys that he had seized from the defendant and found that one of them opened the lock to the apartment door. The police seized certain items, including a pouch bearing a Chucky Cheese logo that contained cocaine in both free-base and salt forms, a digital scale of the kind typically used by drug dealers and plastic sandwich bags similar to the ones containing the drugs seized from the Porsche.

Yorker and Crespo both testified at trial. Yorker had given the defendant a key to her apartment and permitted him, Crespo and Davis to package drugs there. ⁴ She also observed drug transactions, during which Crespo sold drugs supplied by the defendant. Crespo had an arrangement with the defendant whereby he would provide her with food, clothing and shelter in exchange for her selling the defendant's drugs. She used the Chucky Cheese pouch to carry the defendant's drugs. On November 24, 1997, the defendant, Crespo and Davis had been in the Willow Street apartment packaging narcotics. At the time they were stopped by the police, they were on their way to the Cooke Street apartment to sell the narcotics, which they did regularly at that location. Saint Margaret's School is within 1500 feet of the Willow Street apartment.

The defendant was arrested and charged with the crimes of conspiracy to possess a narcotic substance with intent to sell, possession of heroin with intent to sell, possession of heroin with intent to sell within 1500 feet of a school, possession of cocaine with intent to sell and possession of cocaine with intent to sell within 1500 feet of a school. The jury found the defendant guilty of the conspiracy and cocaine related charges. Following the jury's verdict, the court sentenced the defendant to eighteen years in prison. This appeal followed.

I.

The defendant first claims that the court improperly denied his motion to suppress the evidence seized at the Willow Street apartment because the warrant was defective. We disagree.

The following facts pertain to this claim. Prior to trial, the defendant filed a motion to suppress the evidence found pursuant to the Willow Street warrant because paragraph seven of the affidavit in support of the warrant application stated that there was probable cause to search 112-114 Cooke Street, not the Willow Street apartment. ⁵ The defendant claimed that the search violated both the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. The court denied the motion to suppress, finding that the mistake in the affidavit was merely a scrivener's error, citing State v. Santiago, 8 Conn. App. 290, 513 A.2d 710 (1986).

"The standards for upholding a search warrant are well established. We uphold the validity of [the] warrant . . . [if] the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed. . . . [T]he magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories. . . . We are also reminded that [i]n a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the magistrate's determination." (Citations omitted; internal quotation marks omitted.) State v. Rosario, 238 Conn. 380, 385, 680 A.2d 237 (1996). The federal standard for challenging a warrant affidavit is the standard to be applied under article first, § 7, of our state constitution. State v. Glenn, 251 Conn. 567, 578, 740 A.2d 856 (1999).

Although we disagree with the trial court that Santiago is on point with the factual issues here, ⁶ that case accurately states the law controlling the validity of the warrants at issue here. ⁷ "The particularity clause of the fourth amendment requires that no warrants issue except those particularly describing the place to be searched, and the persons or things to be seized. U.S. Const., amend. IV. This standard is met with respect to the place to be searched if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended." (Internal quotation marks omitted.) State v. Santiago, supra, 8 Conn. App. 304.

"There are three purposes behind the particularity clause: (1) to prevent general searches; (2) to prevent the seizure of objects in the mistaken belief that they are within the scope of the issuing magistrate's authorization; and (3) to prevent the issuance of warrants on vague or doubtful factual bases." Id. "In determining whether the description given the executing officer was sufficiently detailed, it is of course important initially to examine the description which appears in the warrant itself." (Internal quotation marks omitted.) Id., 304-305. Here, the defendant does not question that the Willow Street warrant stated with particularity the place to be searched.

Before this court, the state argues that the error in the warrant is merely a scrivener's error and that the court that issued the warrant would know that by comparing the applications and affidavits for the Cooke Street and Willow Street warrants. The defendant responded that this argument violates the rule that a magistrate may consider only the allegations within the four corners of the affidavit when issuing a warrant. See State v. Diaz, 226 Conn. 514, 543, 628 A.2d 567 (1993).

Although the affidavit for the Willow Street apartment contains a scrivener's error, the court properly denied the defendant's motion to suppress because the affidavit presented a substantial factual basis for the magistrate's conclusion that probable caused existed to issue the Willow Street warrant. A reliable confidential informant told police that the defendant participated in a conspiracy to sell narcotics whereby several individuals packaged the narcotics at the Willow Street apartment and sold them at the Cooke Street apartment. Both apartments were integral to their scheme.

Although the defendant is correct that a magistrate may not look to facts outside an affidavit to find probable cause, paragraph seven of the Willow Street affidavit is merely a summary of the attesting police officers' opinion as to the existence of probable cause. The magistrate, however, is charged with the responsibility of determining probable cause. While the magistrate undoubtedly noticed the scrivener's error, the warrant applications and the warrants themselves were accurate as to the place and the persons to which they applied. This is not an instance where the magistrate relied on something other than the facts in the affidavits to find probable cause. The court, therefore,...