Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19
Lloyd George Morgan, Jr. (#117796)
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Lloyd George Morgan, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal and prior habeas counsel provided him ineffective legal representation. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and denies the petition.
In the criminal matters State v. Morgan, CR99-182380 and CR99-182381, in the New Britain Superior Court, the petitioner was charged with two counts of Sale of a Narcotic Substance by a non-drug dependent person in violation of Connecticut General Statutes § 21a-278(b) and two counts of Sale of a Narcotic Substance within 1, 500 feet of a day care center in violation of statutes § 21a-278a(b). At his jury trial, the petitioner was represented by attorney Robert Pickering. After having been convicted on all counts, the petitioner was sentenced, on June 8, 2000, to a total effective sentence of ten years to serve, followed by six years of special parole.
The petitioner's convictions were affirmed on direct appeal in State v. Morgan, 70 Conn.App. 255, 797 A.2d 616, cert. denied, 261 Conn. 919, 806 A.2d 1056 (2002). The following findings of that court are relevant to a disposition of the instant petition.
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.
State v. Morgan, supra, 70 Conn.App. 258.
In his post-trial brief, the petitioner narrows his claim of ineffective assistance to the cross examination of Detective Steck during which trial counsel elicited testimony that a powder found in the petitioner's apartment " field-tested" positive for the presumptive presence of cocaine. As to this occurrence at the underlying trial, the petitioner writes: " It was the eliciting of the presumptive presence of cocaine that was deficient performance." Post-Trial Brief, p. 8. On this issue, the appellate court made the following findings:
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, which is applicable to the states through the fourteenth amendment, and under the due process clause of article first, § 8, of the constitution of Connecticut. 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 dispose of the defendant's claim because we conclude that the laboratory report was not relevant to the issues before the jury. It is well settled that " [t]he proffering party bears the burden of establishing the relevance of the offered [evidence]. Unless such a proper foundation is established, the evidence . . . is irrelevant." (Internal quotation marks omitted.) State v. Casanova, 255 Conn. 581, 767 A.2d 1189, 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, 762 A.2d 1278 (2000).
We dispose of the defendant's claim because we conclude that the laboratory report was not relevant to the issues before the jury. It is well settled that " [t]he proffering party bears the burden of establishing the relevance of the offered [evidence]. Unless such a proper foundation is established, the evidence . . . is irrelevant." (Internal quotation marks omitted.) State v. Casanova, 255 Conn. 581, 591, 767 A.2d 1189 (2001). " We have often stated that [e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case . . . One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable." (Internal quotation marks omitted.) State v. Watson, 26 Conn.App. 151, 156, 599 A.2d 385 (1991), cert. denied, 221 Conn. 907, 600 A.2d 1362 (1992). Furthermore, " it is the court's right and, indeed, its duty to exclude irrelevant evidence." Id.
The laboratory report was not relevant to the issues before the jury, namely, whether the defendant had sold cocaine to Rivera and Clemonts. The details of the police search of the defendant's apartment days after those sales occurred were of no consequence to the jury's analysis. We fail to see the logic of the defendant's argument that the laboratory report would somehow have implicated the credibility of either the confidential informants or Steck. The defendant argues that the evidence would have established " that the police relied solely on the informants in arresting [him], and that the informants could have lied and obtained the drugs from any of the surrounding apartments." If that was the defendant's defense, the court's exclusion of the laboratory report certainly did not affect his ability to set it forth at trial. No evidence demonstrated that either Rivera or Clemonts had any connection whatsoever to the report or the substances described therein. Steck testified that he lacked knowledge of the laboratory report. The report did not bear on anyone's credibility because it was not relevant to the events described at trial. Likewise, even if the defendant had uncontroverted evidence demonstrating that he did not have cocaine in his apartment either before or after the alleged sales to Rivera and Clemonts, the report would still be inadmissible because it was irrelevant. Accordingly, the exclusion of the report did not result from an abuse of discretion.
Having reached that conclusion, we necessarily find that the defendant's attempt to give the court's evidentiary ruling constitutional significance is to no avail. The defendant did not claim that the court's action deprived him of his right to present a defense at trial and seeks review of the claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Review under GoIding is not warranted because the defendant's claim is evidentiary in nature and is not of constitutional magnitude. See State v. Toccaline, 258 Conn. 542, 550, 783 A.2d 450 (2001); State v. Whipper, 258 Conn. 229, 279, 780 A.2d 53 (2001). A defendant's right to present a defense guarantees his or her right, to be exercised within limits, to present relevant evidence. See State v. Porter, 241 Conn. 57, 698 A.2d 739 (1997), ...