State v. Morgan

70 Conn. App. 255

797 A.2d 616

STATE OF CONNECTICUT v. LLOYD GEORGE MORGAN, JR.

(AC 21008), (AC 21301)

Appellate Court of Connecticut.

Argued March 19, 2002.

Officially released June 4, 2002.

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

Robert M. Spector, special assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Carl E. Taylor, former supervisory assistant state's attorney, for the appellee (state).

Opinion

FOTI, J.

The defendant in these consolidated appeals, Lloyd George Morgan, Jr., appeals from the judgments of conviction, rendered after a jury trial, of two counts of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b)¹ and two counts of sale of narcotics within 1500 feet of a day care center in violation of General Statutes § 21a-278a (b).² The defendant also appeals from the judgment of the trial court, rendered following a separate proceeding, that revoked the probation granted to him following a 1991 criminal conviction. On appeal, the defendant claims that (1) the court deprived him of his right to present a defense when it refused to admit into evidence a certain laboratory report, (2) the court improperly limited his cross-examination of two of the state's witnesses, (3) the court improperly denied his motion for a sequestration order during a suppression hearing, (4) the evidence did not support the jury's finding that he had sold narcotics within 1500 feet of real property that had been conspicuously identified as a day care center, (5) certain comments made by the prosecutor constituted prosecutorial misconduct and deprived him of his right to a fair trial, and (6) we should set aside the court's finding that he violated the terms of his probation, a finding based on the convictions at issue in these appeals.³ We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. Between January and March, 1999, members of the New Britain police department were investigating suspected illegal drug transactions at 29 Glen Street in New Britain, an apartment building that was known to be a haven for such activity. To that end, William Steck, an officer with the New Britain police department, enlisted the assistance of Paula Rivera and Edward Clemonts, both confidential informants. Steck met with Rivera and Clemonts on a regular basis, and both individuals had purchased illegal drugs from suspected drug dealers for Steck on several prior occasions. Steck paid Rivera and Clemonts for their assistance.

On February 10, 1999, Steck asked Rivera to present herself at apartment number eight at 29 Glen Street to purchase drugs. Rivera was familiar with the building and with a drug seller in apartment number eight, who she knew as Lloyd. Steck and Rivera drove separately to a parking area located a few blocks away from the building. Steck searched both Rivera's person and her vehicle for drugs. He did not find any and, subsequently, gave Rivera $40 with which to purchase drugs. Rivera drove to 29 Glen Street, parked her vehicle and entered the building. Steck observed her actions from a nearby unmarked vehicle.

Rivera presented herself to the defendant at apartment number eight. The defendant inquired as to what she wanted, and she informed him that she wanted to purchase $40 worth of crack cocaine. She followed the defendant inside the apartment. The defendant's roommate handed the cocaine to the defendant who then handed it to Rivera. After Rivera successfully completed the transaction, she left the building with the crack cocaine and met Steck at the parking lot located a few blocks away. Once there, Rivera related the details of the purchase and delivered the crack cocaine to Steck.

On March 1, 1999, Steck arranged to meet with Clemonts. Steck met Clemonts in an unmarked vehicle and asked him to purchase drugs from apartment number eight at 29 Glen Street. Several blocks from the defendant's building, Steck and Clemonts got out of the vehicle. Steck searched Clemonts' person for drugs. He did not find any. As he had done with Rivera, Steck gave Clemonts money with which to purchase the drugs. Clemonts walked to the building, and Steck observed him enter and exit the building from the vantage point of his vehicle.

Clemonts knocked on the door to apartment number eight. The defendant answered, and Clemonts indicated that he desired to purchase $20 worth of crack cocaine. After the defendant sold it to him, Clemonts exited the building with the drugs and met Steck in a nearby parking lot. Clemonts described the defendant to Steck, apprised him of the details of the purchase and gave him the crack cocaine.

The jury found the defendant guilty of the crimes with which he stood charged. These appeals followed. Additional facts will be set forth where warranted.

I

The defendant first claims that the court deprived him of his right to present a defense when it refused to admit into evidence a laboratory report that indicated that certain evidence that the police took from his apartment subsequent to his arrest tested negative for the presence of cocaine. We disagree.

The following additional facts underlie the defendant's claim. On March 11, 1999, officers duly executed a search warrant at the defendant's apartment. During their search, they found several of the defendant's important personal papers and his credit card. During cross-examination, the defendant's attorney inquired of Steck as to certain substances that he had seized during the search. Steck testified that during the search of the premises, he or other members of his unit seized trace amounts of a substance that they believed, at that time, may have been cocaine. They recovered the substance from a razor blade and from a turntable in the defendant's medicine cabinet. Steck indicated that either he or a member of his unit conducted a field test of the substances and that they tested positive for the presence of cocaine.

The state objected to the defendant's foray into that line of questioning, arguing that the substances seized from the defendant's apartment did not provide the basis for the charges against him. The defendant's counsel argued that the evidence was relevant to Steck's state of mind. He posited that Steck had arrested the defendant because he believed that he had found cocaine in the apartment and, therefore, that the defendant must have sold cocaine to Rivera and Clemonts. The court commented that it did not understand the defendant's claim of relevance, as the defendant was "not charged with any wrongdoing on March 11 .... So, whether they found cocaine or chewing gum ... it really doesn't matter...."

The defendant's counsel insisted that the evidence was relevant and that he wanted to introduce, via another witness, the laboratory report indicating a negative test result on those substances. The court permitted Steck to testify in response to examination by defense counsel that he or members of his unit had field tested those substances and that they tested positive at that time for the presence of cocaine. During the defendant's case-in-chief, his counsel proffered a laboratory report issued by the state toxicological laboratory. The report indicated that those substances had tested negative for the presence of cocaine in tests performed at the laboratory. The state objected on the ground of relevancy. The defendant's counsel argued that the report challenged the "credibility of the confidential informants."

The court ruled that the laboratory report was not relevant to any issue before the jury. The court emphasized that regardless of what police investigators may have thought that they had found on March 11, 1999, it had no bearing on the alleged offenses that the defendant stood charged with having committed on either February 10 or March 1, 1999. Likewise, the court ruled that the proffered evidence did not bear on the jury's assessment of the credibility of the state's witnesses. As the court explained, those events did not "have any direct bearing or even indirect bearing [on] the credibility of the confidential informant witnesses. The jury will judge their credibility based on the testimony which relates to the matters with which we are concerned. The alleged offenses on February 10 and March 1."

The defendant now claims that the court deprived him of his right to present a defense under the sixth amendment to the United States constitution,⁴ which is applicable to the states through the fourteenth amendment,⁵ and under the due process clause of article first, § 8, of the constitution of Connecticut.⁶ The defendant preserved his evidentiary claim at trial, but concedes, however, that he did not preserve his constitutional claim at trial. The defendant now argues that the disallowed evidence "was crucial to [his] defense that the confidential informants lied when they identified [him] as the drug seller, and it was highly relevant ... that they could have purchased drugs at any of the surrounding apartments within [his] building." Furthermore, the defendant claims that once the court permitted Steck to testify that the substances field tested positive as cocaine, the jury was left with the mistaken impression that the defendant's apartment contained cocaine when police investigators searched it on March 11, 1999.

We first set forth our standard of review. "A trial court's ruling on the admissibility of evidence is afforded great deference.... The trial court has wide discretion to determine the relevancy of evidence and the scope of cross-examination. Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion." (Citation omitted; internal quotation marks omitted.) State v. Valentine, 255 Conn. 61, 69,...