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State v. Sinclair

Court of Appeals of Connecticut

May 9, 2017

STATE OF CONNECTICUT
v.
CASEY SINCLAIR

          Argued January 3, 2017

         Appeal from Superior Court, judicial district of Waterbury, Crawford, J.

          John L. Cordani, Jr., assigned counsel, with whom was Damian K. Gunningsmith, for the appellant (defendant).

          Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Don E. Therkildsen, Jr., senior assistant state's attorney, for the appellee (state).

          Lavine, Keller and Beach, Js.

          OPINION

          LAVINE, J.

         The defendant, Casey Sinclair, appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that (1) the trial court abused its discretion by admitting into evidence testimonial hearsay in violation of his constitutional right to confrontation, (2) the prosecutor committed multiple acts of impropriety, and (3) the court abused its discretion in admitting into evidence inadmissible ‘‘guilt by association'' evidence. We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. The defendant lived in the Bronx, New York and owned Sinclair Enterprises, a business that sold used cars. Between October, 2012, and February, 2013, the defendant and his girlfriend, Winsome Lawrence, drove to Connecticut approximately nine or ten times in a Jeep to go to a mall in Waterbury. On February 5, 2013, as they did on every other trip, the defendant drove the Jeep to Lawrence's house, and Lawrence drove the Jeep to Waterbury while the defendant sat in the passenger seat.

         When they arrived in Waterbury, the defendant told Lawrence to get off the highway at an exit and directed her to a side road. Shortly thereafter, a black vehicle parked on the same side of the road. The defendant opened the center console of the Jeep, pulled a string, and took out two white parcels of heroin. He gave the bags to an individual in the black vehicle and walked back to the Jeep with money in his hands. On his way back to the Jeep, the defendant saw a marked police vehicle, and he threw the money into a bush. Lawrence drove the defendant to a nearby gas station. At the gas station, she heard the defendant say on his cell phone, ‘‘Jay, come and pick me up . . . I'm going back for the money.'' The defendant then went into the gas station, telling Lawrence that he needed to get a black bag. After he returned to the Jeep, the black vehicle mentioned previously came and picked up the defendant. The defendant left the gas station for approximately ten minutes.[1] When he returned, he had a black bag filled with money, and he told Lawrence to drive to the mall.

         Earlier that day, at approximately 4:30 p.m., a detective with the Waterbury Police Department received an anonymous tip that ‘‘activity'' was going to take place that night in Waterbury.[2] The detective relayed this information to Gary Angon, a sergeant with the Water-bury Police Department. On the basis of the tip, Angon assigned the officers in his unit to survey the area around the mall. At approximately 8 p.m., Angon saw the Jeep. He radioed the officers, telling them that he had observed a vehicle that fit the description of the one that they were looking for. Angon pulled the Jeep over, and the defendant appeared more nervous than most people who interact with the police because he kept looking up and down the street and hesitating when answering Angon's questions. Angon asked the defendant who owned the Jeep, and the defendant replied that ‘‘it was his friend's.''

         Shortly thereafter, James Dickey, a detective with the Waterbury Police Department, and Bella, Dickey's narcotics detection canine, conducted a narcotics detection sweep of the Jeep. Bella alerted Dickey to the center console of the Jeep, and Dickey and Eric Medina, an officer with the Waterbury Police Department, found a number of prepackaged bags of heroin and a black bag filled with money in a trap in the center console. The defendant and Lawrence were placed under arrest.

         The defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent.[3] During the state's case-in-chief, Angon testified about the police surveillance that ended with the arrests of the defendant and Lawrence. He also testified, over the defendant's objection, that during the course of his investigation, he learned that the Jeep had been inspected at Manny's Auto Repair, which was located next to Sinclair Enterprises, the defendant's place of business, in New York. Medina testified that he recovered approximately 10, 000 bags of heroin, stored in ten bricks, that were worth approximately $45, 000 to $60, 000 and a black bag filled with cash worth $12, 248 in the Jeep. Charmaine Henriques, Lawrence's cousin, testified that she had spoken with the defendant after the incident, and he told her that he ‘‘was trying a thing and g[ot] fucked.''

         Lawrence testified for the state, [4] describing the drug transaction and the events that took place at the gas station. Lawrence also testified that the Jeep belonged to the defendant. The state introduced into evidence a videotape that depicted Lawrence, the defendant, and the black vehicle at the gas station. The videotape also showed the driver of the black vehicle, and Angon testified, over the defendant's objection, that he recognized him as Terrence Saunders, a known heroin dealer.

         The defendant testified on his own behalf that, contrary to Lawrence's testimony, he and Lawrence had only driven to Connecticut on two occasions, the second time being the night on which they were arrested. He testified that on the night of the arrest, he and Lawrence were going to a casino but decided to stop by the mall for dinner. Later, on direct examination, he contradicted himself, testifying that they went to Connecticut to meet a man named Paul because Paul wanted to sell a vehicle to him. He testified that Paul was in the black vehicle that picked him up at the gas station, but that there were also two other men in the vehicle whom the defendant did not know. He denied ever seeing the narcotics or the money in the Jeep prior to their discovery by the police. He also denied owning the Jeep, testifying that the Jeep belonged to Lawrence.

         On January 30, 2015, the jury found the defendant guilty of possession of narcotics with intent to sell by a person who is not drug-dependent. The court sentenced the defendant to eight years imprisonment, five years of which were mandatory. This appeal followed. Additional facts will be set forth as necessary.

         I

         The defendant first claims that the court violated his right to confrontation when it admitted into evidence Angon's testimony that the Jeep was inspected at Manny's Auto Repair, located next to the defendant's business in the Bronx, New York. Specifically, the defendant argues that evidence of the inspection information was inadmissible testimonial hearsay and that admitting the evidence was not harmless error because the inspection location was a critical piece of evidence linking the defendant to the Jeep. The state argues that the evidence was not testimonial hearsay, and even if it was, the state showed that the error was harmless beyond a reasonable doubt. We conclude that even if the defendant's right to confrontation was violated, any violation was harmless error.

         The following additional facts are relevant to this claim. Angon testified on direct examination that, on the basis of his training and experience, a drug dealer often uses a vehicle he owns during a drug transaction but registers it in someone else's name. The dealer will also have someone else drive the vehicle in order to ‘‘avoid any connection with the drug.'' He also testified that narcotics are often transported from New York to Waterbury. The state then introduced into evidence a printout detailing the Jeep's registration information, but neither the place of inspection nor a code that related to the place of inspection was included on the printout.[5] Relying on the printout, Angon testified that the Jeep was registered in New York to a man named Victor A. Manana. The state asked Angon where the Jeep was inspected, and defense counsel objected on the ground of hearsay because Angon would be testifying about ‘‘information he gleaned somewhere else.'' The court overruled the objection, and Angon testified that the Jeep was inspected at Manny's Auto Repair, which was a business located adjacent to the defendant's business, Sinclair Enterprises.

         The defendant questioned Angon during cross-examination about how he obtained the inspection information. Angon replied that sometime in the last two days, someone in his ‘‘office contacted New York State police to see if they could translate . . . the information that's on the printout.'' Outside the presence of the jury, the defendant moved to strike any and all of Angon's testimony relating to the Jeep's inspection information. The defendant argued that Angon's testimony was hearsay because Angon testified about information he obtained from someone in his office who obtained it from an unidentified individual in New York. He also argued that admitting the evidence violated Crawford.[6] The state argued that a New York officer had merely translated a ‘‘somewhat confusing registration document . . . .'' The court denied the motion to strike.

         During his case, the defendant testified that Manny's Auto Repair was located on a lot next to Sinclair Enterprises, but that the properties were separated by a fence and that he did not have any ownership interest in Manny's Auto Repair. On cross-examination, however, he admitted that he used Manny's Auto Repair to perform repairs on the used cars he sold. The state also put into evidence Sinclair Enterprises' Internet site that advertised it as a ‘‘used car service and auto repair facility located in the Bronx.''

         On appeal, the defendant argues that the court violated his constitutional right to confrontation when it admitted Angon's inspection testimony. The defendant argues that Angon's testimony was hearsay because he obtained the inspection information from an unknown individual working in his office who obtained the information from someone working for the ‘‘New York State police, '' and the inspection information was used to prove the truth of the matter asserted. He also argues that the evidence was testimonial in nature because Angon received the information during the course of his investigation, and the primary purpose of the investigation was to prove events relevant to a criminal prosecution. The defendant contends that the state failed to meet its burden of showing that the constitutional violation was harmless beyond a reasonable doubt because a critical component of the state's case was linking the defendant to the Jeep, and without the inspection information, the case ‘‘rose and fell on Lawrence's testimony and her credibility.'' We disagree with the defendant and conclude that even if the court abused its discretion in admitting Angon's testimony, the state met its burden of showing that any evidentiary error was harmless.

         We will assume, without deciding, that the court abused its discretion in allowing Angon to testify as to where the Jeep was inspected because the evidence was testimonial hearsay. ‘‘When an [evidentiary] impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.'' (Internal quotation marks omitted.) State v. William L., 126 Conn.App. 472, 481, 11 A.3d 1132, cert. denied, 300 Conn. 926, 15 A.3d 628 (2011). ‘‘That determination must be made in light of the entire record . . . .'' (Emphasis added; internal quotation marks omitted.) State v. Mitchell, 296 Conn. 449, 460, 996 A.2d 251 (2010).

         ‘‘Whether such error is harmless in a particular case depends upon a number of factors, such as [1] the importance of the witness' testimony in the prosecution's case, [2] whether the testimony was cumulative, [3] the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, [4] the extent of cross-examination otherwise permitted, and, of course, [5] the overall strength of the prosecution's case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.'' (Internal quotation marks omitted.) State v. Smith, 289 Conn. 598, 628, 960 A.2d 993 (2008).

         ‘‘[A]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . .'' (Emphasis added; internal quotation marks omitted.) State v. Mourning, 104 Conn.App. 262, 267, 934 A.2d 263, cert. denied, 285 Conn. 903, 938 A.2d 594 (2007). Moreover, ‘‘[i]n determining whether the defendant is guilty, it is the sole right of the jury as the trier of the facts to draw all reasonable and logical inferences from the facts as it finds them to exist. . . . [I]n considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.'' (Internal quotation marks omitted.) State v. Adorno, 45 Conn.App. 187, 195, 695 A.2d 6, cert. denied, 242 Conn. 904, 697 A.2d 688 (1997).

         To demonstrate the defendant's guilt, the state was required to prove that the defendant possessed and intended to sell the narcotics found in the Jeep. See General Statutes § 21a-278 (b). The main issue in the case was whether the defendant had constructive possession of the narcotics.[7] ‘‘[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . [When] . . . the [narcotics are] not found on the defendant's person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.'' (Internal quotation marks omitted.) State v. Mangual, 311 Conn. 182, 215, 85 A.3d 627 (2014). ‘‘[K]nowledge of the presence of narcotics and control may be proved circumstantially. . . . In situations in which the putative offender is not in exclusive possession of the premises where the narcotics are found, we may not infer that he or she knew of the presence of the narcotics or that he or she had control over them, without incriminating statements or circumstances to support that inference.'' (Internal quotation marks omitted.) State v. Slaughter, 151 Conn.App. 340, 346-47, 95 A.3d 1160, cert. denied, 314 Conn. 916, 100 A.3d 405 (2014).

         Angon's testimony regarding the Jeep's inspection was meaningful because it provided circumstantial evidence that the defendant may have had an ownership interest in the Jeep, which, in turn, supports the proposition that he knew about and had control over the narcotics. After an examination of the entire record, however, we conclude that the state has proved that the error was harmless beyond a reasonable doubt because the overall strength of the state's case shows that the inspection information did not have a tendency to influence the judgment of the jury.

         The state presented a significant amount of evidence which directly, or indirectly, supported the charge that the defendant knowingly possessed the narcotics in the Jeep. Lawrence testified that she observed the defendant take two white parcels out from the center console of the Jeep and engage in a drug transaction with an individual in a black vehicle. After the transaction, the defendant threw money into a bush and told her to drive to a gas station. At the gas station, she heard him say on his cell phone, ‘‘Jay, come and pick me up . . . I'm going back for the money.'' The defendant told her to park near a wall. He then went inside the gas station and eventually returned to the Jeep. Then, the previously mentioned black vehicle arrived and picked up the defendant. She testified that when he returned, he had a black bag filled with cash.

         The state also presented the video recorded at the gas station, which depicted the following events. A tan Jeep with New York license plates parked in a lit area of the side parking lot. Approximately ten minutes later, the Jeep drove to the opposite side of the gas station and parked near a wall in an area with no lighting. While on his cell phone, the defendant exited the Jeep, purchased a soda from within the gas station, and returned to the Jeep. Approximately three minutes later, a black vehicle parked in front of the gas station. The defendant exited the Jeep and entered the backseat of the black vehicle without shaking hands, introducing himself, or otherwise acknowledging the individuals in the vehicle, whom he claimed not to know. Approximately ten minutes later, the black vehicle returned and parked next to the Jeep, which was still in the unlit area of the parking lot, and the defendant exited the black vehicle and went back into the Jeep. In addition, the state presented evidence that the police recovered $12, 248 worth of cash in the Jeep, and, on the basis of Medina's testimony that there was $45, 000 to $60, 000 worth of narcotics in the Jeep, the jury reasonably could have found that two bricks of narcotics was worth approximately $12, 000. This supports Lawrence's testimony that she saw the defendant take out of the center console and sell two parcels of narcotics.

         ‘‘Whether [a witness'] testimony [is] believable [is] a question solely for the jury. It is . . . the absolute right and responsibility of the jury to weigh conflicting evidence and to determine the credibility of the witnesses.'' (Internal quotation marks omitted.) State v. Rodriguez, 93 Conn.App. 739, 751, 890 A.2d 591 (2006), appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007). The jury was free to credit Lawrence's testimony over the defendant's testimony and draw any reasonable inferences from it. Moreover, any inconsistencies in Lawrence's testimony were fully explored by defense counsel on cross-examination and during closing argument.

         The state also presented other incriminating evidence against the defendant in addition to Lawrence's testimony. The videotape showed that the driver of the black vehicle was a known heroin dealer and that the narcotics found in the Jeep were heroin. The anonymous tip that the police received revealed that ‘‘activity'' was going to take place in Waterbury, and, on the basis of the contents of the tip, the police were instructed to survey the area around the mall to look for a Jeep with New York license plates. The police located the defendant near the mall in a Jeep with New York license plates. When Angon pulled the Jeep over, the defendant appeared more nervous than the average person who interacts with the police. See State v. Williams, 110 Conn.App. 778, 788, 956 A.2d 1176 (defendant's ‘‘nervous'' and ‘‘fidgety'' behavior one factor in finding that defendant constructively possessed narcotics), cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). When questioned by the police about who owned the Jeep, the defendant stated that the Jeep belonged to ‘‘a friend, '' and at the police station, he asked Lawrence, ‘‘what did you tell police.'' A few weeks later, he told Henriques that ‘‘I was trying a thing and I g[ot] fucked.'' He also told Henriques that Lawrence was not involved in the incident, but gave Henriques $4000 to bail Lawrence out of jail. After Lawrence was released from custody, the defendant promised her that he would pay for her rent, although he never gave her any money.

         The defendant's own testimony may have been damaging to his case. He testified that he and Lawrence were on their way to a casino, but then contradicted himself and testified that they were actually going to Connecticut to speak to a man named Paul about purchasing a vehicle. In response to the prosecutor's question, ‘‘[the mall is in] the opposite direction of the casino, [r]ight?'' the defendant responded that he did not know how to get to the casino from Waterbury. The defendant stated that he did not know Paul's last name or any of the other occupants in the black vehicle. He also testified that it took only ten minutes for the defendant to be ...


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