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State v. Hernandez

Court of Appeals of Connecticut

April 17, 1990

STATE of Connecticut
v.
Ariel HERNANDEZ.

Argued Jan. 18, 1990.

Page 6

[21 Conn.App. 236] Richard Emanuel, Branford, for appellant (defendant).

Leon F. Dalbec, Jr., Deputy Asst. State's Atty., with whom, on the brief, were Mary Galvin, State's Atty., and Frank McQuade, Asst. State's Atty., for appellee (State).

Before DALY, EDWARD Y. O'CONNELL and FOTI, JJ.

EDWARD Y. [21 Conn.App. 237] O'CONNELL, Judge.

In the first case, the defendant appeals from the judgment of conviction, after a jury trial, of sale of narcotics by a person who is not drug-dependent, in violation of General Statutes ยง 21a-278(b). In the second case, he appeals from the order revoking his probation and putting into effect a suspended sentence imposed for an earlier conviction.

In the first appeal, the defendant claims that the trial court erred (1) in unfairly marshalling the evidence against him in its jury instructions, (2) in refusing to charge that the information and arguments of counsel were not evidence, (3) in denying his motion to dismiss because of prearrest delay and (4) in denying his motion for a mistrial following improper remarks made by the prosecutor during closing argument. Our resolution of the appeal of the narcotics conviction necessarily controls our disposition of the claim involving the probation revocation. We find no error.

The jury could reasonably have found the following facts. On or about June 12, 1986, the defendant sold cocaine to an undercover police officer attached to the Naugatuck Valley street crime unit. The unit was engaged in an undercover investigation of narcotics trafficking in the Naugatuck Valley. The unit's work was part of a cooperative effort, ending in January, 1987, with the federal drug enforcement administration and the federal bureau of investigation.

Following the conclusion of the unit's investigation, an arrest warrant was issued for the defendant on January 28, 1987. The arrest, however, was not made until June 11, 1987. During this period, the police made [21 Conn.App. 238] numerous, but unsuccessful, attempts to take the defendant into custody. They placed the defendant's suspected residence under surveillance on many occasions, looked for the defendant in local bars, and also made inquiries among street sources, all of whom denied knowledge of the defendant's whereabouts. Eventually, however, the police learned that the defendant might be planning to leave Connecticut for an unknown Florida destination. Until that time, they had not directly approached the defendant's suspected residence for fear that he might flee if they failed to take him into custody immediately. This fear proved to be unfounded, however. When, as a last resort, an officer knocked at the defendant's door and left word that the police wanted to see him, he called the police station shortly thereafter and turned himself in.

I

In his first claim, the defendant argues that the trial court, in summarizing the facts during the jury instructions, marshalled the state's evidence to the virtual exclusion of the defendant's. This, he asserts, had the effect of a directed verdict for the state and violated his federal and state constitutional rights to a fair trial. [1] Specifically, he contends that he presented an alibi defense and was entitled to have the court relate to the jury the facts supporting this defense. We do not agree.

We have long recognized that a judge's instructions to the jury may not concentrate solely on the state's case and exclude evidence presented by the defendant, thereby sinking the defendant's case completely out of view. State v. Gallman, 16 Conn.App. 433, 434-35, [21 Conn.App. 239] 547 A.2d 932 (1988).

Page 7

It is also true, however, that because the state has the burden of proof, it will often present the majority of the evidence. Consequently, the trial court, when instructing the jury, will more likely than not spend more time discussing state's evidence than the defendant's. State v. LaCasse, 9 Conn.App. 79, 84, 516 A.2d 145, cert. denied, 201 Conn. 815, 518 A.2d 72 (1986). In this case, the state presented a much greater quantity of evidence upon which the court could comment than the defendant presented.

The defendant was the only witness testifying on his behalf, and his testimony was limited to an assertion that while he could not remember specifically where he was on the night in question, he was not present when the alleged drug sale took place. Therefore, he claims, he could not have made the sale to the undercover officer. The law does not require "exact parity in the time spent on comments on both the prosecution and defense portions of a case"; State v. Cazimovski, 20 Conn.App. 190, 192-93, 565 A.2d 254 (1989); nor is it error for the court to comment on the claims of one party in more detail and at greater length than those of the opposition. State v. LaCasse, supra, 9 Conn.App. at 85, 516 A.2d 145. Whenever a court comments on the evidence, " ' "the charge must to some extent uncover the weakness of a weak case, the difficulties of a difficult case, or the strength of a strong case." ...' " (Citations omitted.) Id.

Furthermore, it is rudimentary jurisprudence that the jury charge must be considered as a whole to see if the case was fairly presented to the jury. State v. Sinclair, 20 Conn.App. 586, 597, 569 A.2d 551 (1990). The jury was properly instructed on at least two occasions that its recollection of the evidence, and not the trial court's, was controlling. [2] The charge, taken as a whole, [21 Conn.App. 240] was ...


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