State v. Qayyum

344 Conn. 302

279 A.3d 172

STATE of Connecticut

v.Muhammad A. QAYYUM

SC 20552

Supreme Court of Connecticut.

Argued April 28, 2022

Officially released August 16, 2022

Robert L. O'Brien, assigned counsel, with whom, on the brief, was Christopher Y. Duby, assigned counsel, for the appellant (defendant).

Linda Frances Rubertone, senior assistant state's attorney, with whom, on the brief, were David R. Shannon, state's attorney, and Dawn Gallo, former state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Mullins, Kahn, Ecker and Keller, Js.

MULLINS, J.

In this certified appeal, the defendant, Muhammad A. Qayyum, appeals from his conviction of one count of conspiracy to sell narcotics in violation of General Statutes § 53a-48 and General Statutes (Rev. to 2017) § 21a-277 (a),¹ and two counts of possession of narcotics with intent to sell in violation of § 21a-277 (a). On appeal, the defendant asserts that the Appellate Court improperly affirmed the judgment of the trial court because the trial court improperly admitted (1) expert testimony regarding the defendant's intent to sell narcotics, and (2) evidence that the defendant had no reportable wages on record with the Connecticut Department of Labor (department) in 2016 and 2017. We reject both of these claims and, accordingly, affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. See State v. Qayyum , 201 Conn. App. 864, 866–67, 875, 242 A.3d 500 (2020). "On April 12, 2017, Torrington Police Officer Matthew Faulkner went to 356 Migeon Avenue in Torrington to execute a search warrant following his investigation regarding possible drug sales being conducted from unit 1 North, the apartment of Oscar Pugh. Officer Faulkner surveilled the residence for approximately one hour. During that time, two people separately arrived at Pugh's apartment but departed quickly. Officer Faulkner also saw the defendant arrive in a dark gray Infiniti sedan bearing Massachusetts license plates, which the defendant had rented from [the] Hertz [car rental company]. The defendant had rented cars from Hertz for sixty-three days during the period from January, 2017, until his arrest in April, 2017, [and the total cost of the rentals was] between $2500 and $2600. Officer Faulkner frequently had observed the defendant at Pugh's apartment over these preceding months.

"Additional police arrived approximately one hour after Officer Faulkner began his surveillance [on April 12, 2017]. The police executed the search warrant and detained the defendant and Pugh. The defendant eventually admitted that he had narcotics in his front pockets, and Officer Faulkner then proceeded to search them. Inside, he found $267 in small bills, seven wax folds of heroin, and two ‘dubs’ of crack cocaine.² The police did not find any drug paraphernalia on the defendant or in his rental car, but a canine officer alerted [to] the car's trunk and door.

"The police also searched Pugh. They found six wax folds of heroin and $2 in his pockets and a single dub of crack cocaine in his sock. They also found seventeen dubs of crack cocaine in between the couch cushions where Pugh was seated, along with various items of drug paraphernalia, such as crack pipes and cut straws. Additionally, they found a handwritten ledger documenting narcotics sales. Pugh admitted that the narcotics found on his person were his and that he was a heavy user, but he denied that the other narcotics in the apartment belonged to him." (Footnote in original.) Id., at 866–67, 242 A.3d 500. Pugh explained that he had an arrangement with the defendant, in which he allowed the defendant to sell drugs in and from Pugh's apartment and, in exchange, Pugh received drugs at a discounted rate. "Other than the $2 found on Pugh's person, the police did not find any ... money [in] the apartment." Id., at 867, 242 A.3d 500.

"The defendant was [arrested and] charged by way of a substitute long form information with one count of conspiracy to sell narcotics in violation of §§ 53a-48 and 21a-277 (a) and two counts of possession of narcotics with intent to sell in violation of § 21a-277 (a). The defendant also was charged in a part B information with having twice been convicted of the sale of narcotics in violation of § 21a-277 (a). The defendant pleaded not guilty and elected to be tried by a jury." Id.

The jury found the defendant guilty of all three counts of the long form information. After the jury returned its verdict, the defendant pleaded guilty, under the part B information, to having twice been previously convicted for the sale of narcotics, thus increasing his maximum sentencing exposure under § 21a-277 (a). Thereafter, "the [trial] court sentenced the defendant to a total effective term of twenty years of incarceration, execution suspended after twelve years, with five years of probation." Id. The Appellate Court affirmed the judgment of the trial court. Id., at 881, 242 A.3d 500. This appeal followed.³

I

We first address the defendant's claim that the Appellate Court incorrectly concluded that the trial court had not abused its discretion by permitting expert testimony regarding the defendant's intent to sell narcotics. More specifically, the defendant claims that the testimony of Scott Flockhart, a detective with the New Milford Police Department, invaded the jury's province as fact finder because Flockhart was allowed to offer improper opinion testimony regarding whether the defendant intended to sell the drugs that were in his pocket at the time of his arrest. The state responds that the testimony was permissible because it addressed only "the general behavior of drug users and drug traffickers." Id., at 879–80, 242 A.3d 500. The state relies on State v. Nelson , 17 Conn. App. 556, 555 A.2d 426 (1989), contending that, "[although] it is improper to solicit a particularized opinion as to the defendant's use and possession of items or drugs found ... it is wholly appropriate to inquire into the custom and practice of narcotics traffickers generally." Id., at 566, 555 A.2d 426. Because we conclude that this claim was not properly preserved, we decline to review it.

The following facts are relevant to the defendant's claim. During trial, the state presented the expert testimony of Flockhart, who testified that he had extensive experience, throughout his career, dealing with narcotics. Flockhart testified that people who traffic narcotics frequently use rental cars to avoid detection. He also testified that people who traffic narcotics often enlist intermediaries in an effort "to insulate themselves from the actual criminal activity." The prosecutor then asked Flockhart the following hypothetical question: "[I]f you came across a person with two $20 bags of crack [cocaine] and seven bags of heroin ... would you be able to say whether that person possessed those drugs to use or possessed them with the intent to sell them?" Defense counsel objected to this question on the ground that it went to the ultimate issue. The trial court excused the jury to address this objection.

Outside the presence of the jury, defense counsel argued that the "hypothetical mirrors the facts of the case so closely that, essentially, the witness [was] being asked to give an opinion on the ultimate issue in this case." The trial court stated that the question, as phrased, "[came] too close to asking this expert as to whether he ha[d] an opinion as to whether someone who's exactly situated like [the] defendant was engaged in possession of narcotics with intent to sell." The court sustained the objection and cautioned the prosecutor to "[ask] the questions in a more general way...."

Thereafter, with the jury present and in accordance with the trial court's ruling, the prosecutor asked Flockhart a series of questions regarding what factors an officer looks for when deciding to charge a person with possession of narcotics with the intent to sell.⁴ Defense counsel did not object to any of those questions.

Following cross-examination, the prosecutor elicited additional testimony from Flockhart, in which he testified that he does not focus on a single factor when deciding whether to charge a person with possession of narcotics with intent to sell but, rather, looks at all the factors in the aggregate.

In addressing the defendant's claim that the trial court improperly admitted Flockhart's testimony, the Appellate Court pointed out that, at trial, defense counsel had objected only to the prosecutor's hypothetical question regarding the significance of a person holding the exact amount of drugs with which the police apprehended the defendant and whether those circumstances would indicate an intent to sell drugs. See State v. Qayyum , supra, 201 Conn. App.at 879 n.3, 242 A.3d 500. The Appellate Court noted that the trial court had sustained that objection and then instructed the prosecutor to ask his questions in a more general way. See id. Defense counsel did not object to the reformulated set of questions that the prosecutor asked Flockhart after the trial court sustained defense counsel's objection to the hypothetical. See id. As a result, the Appellate Court noted, the defendant's claim concerning Flockhart's testimony following defense counsel's objection was unpreserved. Id.

Notwithstanding that observation, the Appellate Court also addressed the merits of that unpreserved claim and concluded that the trial court did not abuse its discretion because Flockhart "never expressed his opinion on the ultimate issue before the jury, namely, whether the defendant intended to sell narcotics." Id., at 880, 242 A.3d 500. Without reaching the merits, we agree with the Appellate Court that the defendant did not preserve this evidentiary claim⁵ at trial.

"In order to preserve an evidentiary ruling for review, trial counsel must object properly.... In objecting to evidence, counsel...