author: HEALEY, J.

text:
    DESMOND WHYTE v. COMMISSIONER OF CORRECTION
    (AC 17497)
    Foti, Landau and Healey, Js.

      Argued February 22
    officially released June 8, 1999

      David B. Rozwaski, special public defender, for the appellant (petitioner).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and Jo Anne Sulik, assistant state’s attorney, for the appellee (respondent).
   Opinion

HEALEY, J.

The petitioner appeals from the judgment of the second habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner claims that the second habeas court improperly (1) denied his petition for certification to appeal and (2) denied his petition for a writ of habeas corpus. We affirm the judgment of the second habeas court.

The second habeas court’s memorandum of decision and the record disclose the following facts and procedural history. The petitioner was arrested in a Bridgeport drug sweep with five other individuals on September 6, 1990, for possession of marijuana and cocaine in violation of General Statutes § 21a-277 (a). The petitioner, as well as two other individuals, David Rochester and Verly Gordon, also arrested in the sweep, hired attorney William Browne to represent them. After the petitioner’s trial began, the petitioner changed his plea to guilty when the state investigated his alibi defense and discovered that it was fabricated. On September 3, 1991, the petitioner was sentenced to twelve years in prison. The trial court denied Browne’s petition for a new trial. In a direct appeal brought by attorney Earl Williams, this court affirmed the petitioner’s conviction. See State v. Whyte, 31 Conn. App. 904, 623 A.2d 1074 (1993).

On November 30, 1994, the petitioner filed a revised amended petition (first petition) for a writ of habeas corpus, claiming, inter alia, that his confinement was unlawful because Browne had rendered ineffective assistance at the petitioner’s criminal trial. The first habeas court, Sferrazza, J., denied the first petition by way of a decision dated July 24, 1995. The petitioner then appealed from the decision of the first habeas court, and this court dismissed his appeal in a per curiam decision. Whyte v. Commissioner of Correction, 44 Conn. App. 815, 690 A.2d 1391 (1997).

On January 13, 1997, the petitioner filed a revised amended second petition (second petition) for a writ of habeas coipus that alleged that his confinement was illegal because he had been denied effective assistance of counsel at his criminal trial because, inter alia, Browne had represented the petitioner and the two codefendants, Gordon and Rochester, in the same criminal matter at the same time, and also because he had been denied effective assistance of counsel in his first habeas petition by attorney Ronald K. Bellenot. After a trial on the petitioner’s claims was held on February 18 and 25, 1997, the second habeas court, Grogins, J., denied the petitioner’s second petition by its July 7, 1997 memorandum of decision. The second habeas court found that the petitioner had failed to produce evidence of an actual conflict of interest as to his claim of ineffective assistance of trial counsel and also as to his claim of ineffective assistance of his first habeas counsel. On July 11,1997, the court, Grogins, J., denied the petitioner’s petition for certification to appeal, giving rise to this appeal.

The petitioner claims that the second habeas court improperly denied his petition for certification to appeal. Specifically, the petitioner claims that the second habeas court abused its discretion in denying certification because the petitioner presented issues that are debatable among jurists of reason, that a court could resolve the issues in a different manner and that the issues warrant further consideration. This claim lacks merit.

“ ‘Faced with a habeas court’s denial of a petition for certification to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion. Id. Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits. Id.’ ” Petaway v. Commissioner of Correction, 49 Conn. App. 75, 77, 712 A.2d 992 (1998).

“To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. . . . [Simms v. Warden, supra, 230 Conn. 616], quoting Lozada v. Deeds, 498 U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991). . . . Tatem v. Commissioner of Correction, 39 Conn. App. 813, 816, 667 A.2d 1295 (1995), cert. denied, 236 Conn. 904, 670 A.2d 1305 (1996) .” (Internal quotation marks omitted.) Reddick v. Commissioner of Correction, 51 Conn. App. 474, 477, 722 A.2d 286 (1999). In addition, we have stated that “[a]s our courts have applied Lozada v. Deeds, supra, 498 U.S. 430, the mere allegation of a violation of a constitutional right is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas corpus court has denied certification to appeal.” Petaway v. Commissioner of Correction, supra, 49 Conn. App. 77-78.

Initially, we observe that the second habeas court reviewed at some length what occurred in the first habeas trial before Judge Sferrazza. Judge Sferrazza held that the petitioner’s guilty plea at trial waived any ineffective assistance claim as to Browne’s representation during preparation for or during the petitioner’s criminal trial and this was agreed to by both counsel at the first habeas trial. The second habeas court, therefore, properly did not address those issues. It also pointed out that the first habeas court had analyzed the petitioner’s claim that Browne had provided ineffective assistance with reference to the petitioner’s decision to change his plea to guilty. In doing so, the first habeas court found that the petitioner had failed to prove the prejudice component of the two-pronged Strickland test as interpreted by our Supreme Court. See Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). The first habeas court also rejected the petitioner’s ineffective assistance claim made against Browne with reference to his failure to object to the state’s recommendation for the maximum prison sentence, specifically finding that the petitioner had not sustained his burden of proving that but for Browne’s allegedly substandard performance there was a reasonable probability that he would have received a lighter sentence. This court dismissed the petitioner’s appeal. Whyte v. Commissioner of Correction, supra, 44 Conn. App. 815.

In the second habeas proceeding, the respondent, invoking Practice Book § 529H (3), now § 23-29 (3), argued that the court should dismiss the allegations of the petition made against Browne. Section 23-29 provides in relevant part that the court may, either upon motion or sua sponte, “dismiss the petition, or any count thereof, if it determines that... (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . .” The trial court not only acknowledged the necessity of deciding the applicability of this rule, but also cited a number of cases to underline its comment that “there may be some question as to whether conflict of interest is the same ground as ineffective assistance of counsel.” In this context, the trial court quoted Negron v. Warden, 180 Conn. 153, 165, 429 A.2d 841 (1980), where our Supreme Court followed the United States Supreme Court decision in Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). The Sanders court stated: “Should doubts arise in particular cases as to whether two grounds [of successive habeas corpus petitions] are different or the same, they should be resolved in favor of the applicant.” Id., 16; Tirado v. Commissioner of Correction, 24 Conn. App. 152, 158, 586 A.2d 625 (1991). Furthermore, as the second habeas court recognized, a “second habeas petition [can be] inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.” Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992).

The second habeas court addressed the respondent’s motion to dismiss the first count of the petition directed to Browne’s ineffective assistance, which was intermixed with his conflict of interest claim against Browne. We conclude that the second habeas court properly resolved the motion to dismiss against the petitioner.

“Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest. Where, however, the defendant claims that his counsel was burdened by an actual conflict of interest . . . the defendant need not establish actual prejudice. . . . Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breachfed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. ... In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance. . . . Phillips v. Warden, 220 Conn. 112, 132-33, 595 A.2d 1356 (1991).

“On appellate review, the historical facts found by the habeas court may not be disturbed unless they were clearly erroneous .... Id., 131. When, as in this case, those facts are essential to a determination of whether the petitioner’s sixth amendment rights have been violated, we are presented with a mixed question of law and fact requiring plenary review. See id.; Mclver v. Warden, 28 Conn. App. 195, 203, 612 A.2d 103, cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992). . . . Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 583-84, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998).” (Internal quotation marks omitted.) Mercer v. Commissioner of Correction, 51 Conn. App. 638, 643-44, 724 A.2d 1130, cert. denied, 248 Conn. 907, 731 A.2d 309 (1999).

“Because there are often many potential conflicts between private counsel in multi-defendant trials, ‘[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980). An actual conflict of interest occurs if ‘the defendants’ interests diverge with respect to a material factual or legal issue or to a course of action such that the attorney finds himself in the untenable position of serving two clients with incompatible needs.’ United States v. Pungitore, 910 F.2d [1084, 1141 (3d Cir. 1990) (citing United States v. Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988), cert. denied, 492 U.S. 906, 109 S. Ct. 3215, 106 L. Ed. 2d 566 (1989)) [cert. denied sub nom. Scarfo v. United States, 500 U.S. 915, 111 S. Ct. 2009, 114 L. Ed. 2d 98 (1991)].” United States v. Pungitore, 965 F. Sup. 666, 679 (E.D. Pa. 1997).

In the present matter, the petitioner alleges that he was “entitled to the ‘undivided loyalty’ of the attorney, particularly in that the attorney must be able to exercise independent professional judgment on behalf of the client.” The petitioner properly argues that “Connecticut has recognized this principle in noting that a client is entitled to the ‘undivided loyalty of the one upon whom he looks as his advocate and his champion.’ ” Dukes v. Warden, 161 Conn. 337, 345-46 [288 A.2d 58 (1971), aff'd, 406 U.S. 250, 92 S. Ct. 1551, 32 L. Ed. 2d 45] (1972). In the petitioner’s brief, he apparently argues that because trial counsel failed to withdraw from representing the petitioner because of the multiple representation, trial counsel breached the duty of loyalty and independent professional judgment to which the petitioner was entitled. Furthermore, the petitioner argues that the habeas court improperly denied him the opportunity to put on testimony from the codefendants on the issue of the original trial counsel’s multiple representation.

The record reveals, however, that the petitioner knew that the two codefendants were also represented by Browne and that he did not request counsel to withdraw from representation in view of the multiple representation. Furthermore, the record reveals that contrary to what the petitioner represented to the second habeas court, his plea of guilty did not result in the codefen-dants’ receiving lesser sentences. The record does not reveal the contents of the petitioner’s presentence investigation report or whether the codefendants initially presented false alibi defenses as the petitioner did.

The question addressed by the second habeas court, and the issue this court finds dispositive, is whether an actual conflict of interest existed. The petitioner represented to the second habeas court that his code-fendants were prepared to testify that the petitioner was not involved in the drug operation. The petitioner admitted on cross-examination that neither codefen-dant had implicated him in his statement to the police or in his testimony. The petitioner also argued to the court that Gordon testified for the sole purpose of rebutting Bellenot’s testimony. In doing so, the petitioner argued that if the matter went to trial, both codefen-dants would testify on the petitioner’s behalf as alibi witnesses. Even if this court was inclined to accept the petitioner’s claims as to what the codefendants would testify if the case went to trial, the petitioner cannot show that Browne represented conflicting interests between the three defendants or adduced evidence or advanced arguments on behalf of either of the two codefendants that injured the petitioner’s interests. Since both codefendants would testify, according to the petitioner, that the petitioner was with them and not involved with the ongoing drug operation, none of the defendants nor their attorney was in a situation where he would have had to choose between self-incrimination and testifying in favor of a codefendants’ innocence.

We have had occasion to “point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer’s performance. . . . Cuyler v. Sullivan, [supra, 446 U.S. 350]. To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest an impairment or compromise of his interests for the benefit of another party. . . . Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987), cert. 484 U.S. 1012, 108 S. Ct. 713, 98 L. Ed. 2d 663 (1988). Blakeney v. Commissioner of Correction, supra, 47 Conn. App. 584-85.” (Emphasis in original; internal quotation marks omitted.) Mercer v. Commissioner of Correction, supra, 51 Conn. App. 645.

The petitioner has not demonstrated an abuse of discretion on his claimed sixth amendment violation predicated on an actual conflict of interest. As we have pointed out, the second habeas court, fol 1 o wing Negron v. Warden, supra, 180 Conn. 165-66, accorded the petitioner the benefit of the doubt and analyzed his ineffective assistance of counsel claim in the context of the alleged actual conflict of interest argument of the petitioner. The petitioner has not demonstrated that an actual conflict of interest constitutionally impaired him so as to persuade us that the second habeas court improperly resolved this claim. Browne not only did not represent conflicting interests, but there was no showing of an actual conflict of interest adversely affecting Browne’s performance. See Phillips v. Warden, supra, 220 Conn. 133. The mere allegation of ineffective assistance of counsel because of multiple representation is not sufficient to establish an abuse of discretion where, as here, the petitioner must show actual conflict. There is a significant distinction between alleging and proving an abuse of discretion. “As our courts have applied Lozada v. Deeds, supra, 498 U.S. 430, the mere allegation of a violation of a constitutional right is insufficient to meet the initial hurdle of proving an abuse of discretion when the habeas court has denied certification to appeal.” Petaway v. Commissioner of Correction, supra, 49 Conn. App. 77-78.

The appeal is dismissed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       Rochester and Gordon also pleaded guilty while represented by Browne. The transcript from the petitioner’s trial and sentencing was an exhibit at his first habeas trial. Contrary to his representations at the second habeas hearing that he was the first to plead guilty and to be sentenced, the transcript from the sentencing hearing showed that, in asking for leniency, the petitioner informed the court that Rochester and Gordon had already received suspended sentences.

       The first count of the second habeas petition alleges that the petitioner’s trial counsel was ineffective as counsel with respect to five specific issues. He argues on appeal that “all of [the five specific issues] had the shared element of trial counsel’s conflict of interest in representing [the petitioner] and his codefendants at the same time.”

       The petitioner claims that Bellenot, in the first habeas proceeding, rendered ineffective assistance of counsel in that, inter alia, he failed to raise the issue of multiple representation by Browne. We need not discuss that claim because our resolution of the petitioner’s claim of actual conflict of interest is dispositive and is included in our analysis of that issue.

       In Simms v. Warden, supra, 230 Conn. 615-16, our Supreme Court incorporated the Lozada criteria under which it became incumbent on a petitioner from the denial of the certification of the habeas corpus petition to make a “substantial showing” that he was denied a federal constitutional right. Such a showing means that he “must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the issues are adequate to deserve encouragement to proceed further.” Lozada, v. Deeds, supra, 498 U.S. 432, quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).

       As a result, the first habeas court did not address the petitioner’s allegations of Browne’s performance concerning his failure to make a motion for judgment of acquittal, his improper preparation for trial, his inadequate response to the state’s withdrawal of the marijuana charge and his failure to address certain suppression issues.

        Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       The first habeas court also found that the petitioner’s claim that by changing his plea to guilty he would receive no jail time to be “utterly unworthy of belief.”

       Among the other claims rejected by Judge Sferrazza were that if the petitioner’s trial had gone to verdict, he then would have been acquitted or received a more favorable sentence and that Williams, his appellate counsel, rendered ineffective assistance by declining to raise issues of Browne’s ineffective trial representation on the direct appeal.

       See, e.g., State v. Webb, 238 Conn. 389, 413-15, 680 A.2d 147 (1996); Phillips v. Warden, 220 Conn. 112, 134, 595 A.2d 1356 (1991); State v. Phidd, 42 Conn. App. 17, 34, 681 A.2d 310, cert. denied, 238 Conn. 907, 679 A.2d 2 (1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1115, 137 L. Ed. 2d 315 (1997).

       It is apparent from the structure of the memorandum of decision of the second habeas court that it followed the reasoning of Negron v. Warden, supra, 180 Conn. 165, and afforded the petitioner the benefit of the doubt. In so doing, it held an evidentiary hearing and reviewed and fully analyzed his claim of ineffective assistance, as well as his conflict of interest claim. While its close examination of these two issues does not alter our analysis, it does allow us fairly to decide the petitioner’s appeal as to the propriety of the second habeas court’s denial of certification and, specifically, as to abuse of discretion.

       Our Supreme Court has defined conflict of interest as when “one defendant stands to gain significantly by counsel adducing probative evidence in or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing.” (Internal quotation marks omitted.) Festo v. Luckart, 191 Conn. 622, 631, 469 A.2d 1181 (1983).

       The petitioner’s brief stated: “In the case at hand trial counsel’s withdrawal from representing the petitioner/appellant breached the duty of loyalty and independent decision making that the petitioner was entitled to have in his representation.” We note, however, that trial counsel did not withdraw from representing the petitioner and that the petitioner most likely meant to refer to trial counsel’s “failure” to withdraw.

       The petitioner contends in his brief that “his codefendants received better plea bargains subsequent to his having pleaded guilty.” (Emphasis added.) The petitioner erroneously claims that by his pleading guilty first as directed by trial counsel there was a conflicting interest as to the codefendants because trial counsel could use that guilty plea in the codefendants’ favor. The petitioner, however, was not the first to enter a guilty plea. See footnote 2.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. CORNELL LEE
    (AC 17827)
    O’Connell, C. J., and Sullivan and Daly, Js.

      Argued January 25
    officially released June 8, 1999

      Sarah F. Summons, special public defender, for the appellant (defendant).

      Robert M. Spector, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph J. Harry, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-277 (a). He claims that the trial court improperly denied his motion to set aside the verdict because the evidence was insufficient to support his conviction. He also claims that the trial court improperly instructed the jury on (1) the difference between direct and circumstantial evidence, (2) the law of reasonable doubt and (3) the jurors’ duties. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 16, 1996, Detectives Ralph Confinante and Daniel Dumkowski observed many individuals entering and exiting a multifamily residence located in Bridgeport at 767 Maple Street, known to be a location where crack cocaine was bought and sold. On the basis of that observation, the detectives sent an informant to the residence to make a controlled purchase of narcotics. On August 27, 1996, the detectives sent the informant back to the same address to make another controlled purchase. On both occasions, the informant purchased narcotics from someone in the residence. The detectives obtained a search warrant for the apartment pursuant to that information.

The detectives, along with other officers from the Bridgeport police department, executed the search warrant on September 5,1996. The officers knocked on the door, received no response and entered the apartment. Confinante entered first and observed two males in the kitchen. He asked two officers to detain those individuals while he continued down a hall. Confinante then saw the defendant exit a bathroom and heard the toilet flush. The defendant was searched and detained. Confi-nante searched the bathroom and found a tom brown paper bag stuck in the bottom of the toilet bowl. Upon closer observation, Confinante discovered that the brown paper bag contained a large plastic bag that contained several small plastic bags. The small bags contained a rock-like substance. Dumkowski counted 172 bags and a field test of its contents revealed the substance to be crack cocaine.

The officers found a total of five individuals inside the apartment: the defendant, Curtis Blue, Marcus Gregory, Sharon Golden and Vanessa Toddmann. They seized approximately $350 from the individuals and various drug paraphernalia, such as crack pipes, empty drug packaging and pots used to cook cocaine. Detective William Heckley videotaped most of the execution of the search warrant. Heckley asked each of the detainees for his or her name, address and date of birth. While the other detainees gave the correct information, the defendant gave the officer a wrong name and refused to give his address. The defendant was sweating and declined to look at the camera while Heckley questioned him. The defendant was subsequently arrested and charged with possession of narcotics with intent to sell and criminal attempt to tamper with physical evidence.

At trial, the defendant testified that he had not committed the crimes charged. Toddmann, who was arrested with the defendant and pleaded guilty to the charge of possession of narcotics with intent to sell, testified that she was the one who had attempted to flush the drugs down the toilet.

I

The defendant claims that his conviction was based on insufficient evidence. The defendant argues that the state relied on ambiguous and inherently unreliable circumstantial evidence to establish possession of the narcotics. He also argues that the evidence was insufficient to prove intent to sell. We disagree.

“Our courts utilize a two part analysis when reviewing a challenge to the sufficiency of evidence. State v. Henning, 220 Conn. 417, 420, 599 A.2d 1065 (1991). We first review the evidence in the light most favorable to sustaining the guilty verdict.’ Id. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, whether any rational trier of fact could have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. ’ Id. In the review process, the probative force of the evidence is not diminished if it consists, in whole or in part, of evidence that is circumstantial rather than direct. Id., 420-21. Findings of fact that are consistent with guilt are afforded great deference unless they are improbable and unconvincing. State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991).” State v. Paredes, 35 Conn. App. 360, 372, 646 A.2d 234, cert. denied, 231 Conn. 925, 648 A.2d 166 (1994).

A

“In order to prove possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence and exercised dominion and control over it. . . . Where, as in the present case, the contraband is not found on the defendant’s person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997).

In the present case, there was sufficient indicia of constructive possession to support the defendant’s conviction. The defendant was found in a residence that was known as a place where crack cocaine was used and sold. An officer saw the defendant exit the bathroom and heard the toilet flush. The toilet contained bags of crack cocaine. The defendant was sweating when confronted and provided a false name to the police and refused to give an address. On the basis of the cumulative effect of the foregoing evidence, the jury reasonably could have found that the defendant was in possession of the narcotics.

B

There was sufficient evidence of the defendant’s intent to sell narcotics to support his conviction. “Proof of intent is usually established through circumstantial evidence, from which the jury may draw reasonable and logical inferences. . . . The quantity of narcotics found in the defendant’s possession [is] probative of whether the defendant intended to sell the drugs.” (Citations omitted; internal quotation marks omitted.) State v. Frazier, 39 Conn. App. 369, 379-80, 665 A.2d 142 (1995). “Also indicative of the defendant’s intent to sell narcotics is the manner in which the narcotics are packaged. . . . Evidence demonstrating that the defendant was present in a known drug trafficking area further suggests an intent to sell.” (Citations omitted; internal quotation marks omitted.) State v. Glenn, 30 Conn. App. 783, 793, 622 A.2d 1024 (1993).

In this case, there was sufficient evidence to establish that the defendant had an intent to sell the drugs. The defendant was in a residence notorious for crack cocaine use and trafficking. He constructively possessed 172 bags of narcotics, and drug packaging materials were found in the apartment. “The quantity of [drugs] is consistent with street level narcotics sales and [is] indicative of the defendant’s intent to sell the narcotics. The large number of bags of narcotics in the defendant’s possession is a fact from which the inference of possession with intent to sell can be drawn. State v. Bowens, 24 Conn. App. 642, 649, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991).” State v. Glenn, supra, 30 Conn. App. 794.

In light of the foregoing, we conclude that there was sufficient evidence for the jury to convict the defendant of possession of a narcotic substance with intent to sell.

II

The defendant next makes three separate claims that the trial court’s instructions were improper. Because these claims were not preserved at trial, the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

“In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction.. . . The charge is not to be judged in artificial isolation from the overall charge. ... An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” (Citations omitted; internal quotation marks omitted.) State v. Barnes, 33 Conn. App. 603, 607, 637 A.2d 398 (1994), aff'd, 232 Conn. 740, 657 A.2d 611 (1995).

A

The defendant first asserts that the trial court inadequately charged the jury on the difference between direct and circumstantial evidence. At jury selection, the trial court gave preliminary instructions on direct and circumstantial evidence. The court also gave the jury instructions on direct and circumstantial evidence after the close of evidence. The defendant claims that the court’s instructions at the close of evidence were incomplete and confused the jury and diluted the state’s burden of proof. He further argues that the trial court divided its explanation of circumstantial evidence between the preliminary and the final jury charge, which resulted in merging the definition of circumstantial evidence into the definition of direct evidence.

The defendant’s claim is reviewable under Golding because the record is adequate for review and the claim implicates the fundamental constitutional right that the state establish guilt beyond a reasonable doubt. State v. James, 211 Conn. 555, 580-81, 560 A.2d 426 (1989); State v. Miller, 202 Conn. 463, 489-90, 522 A.2d 249 (1987). The claim fails, however, because the alleged constitutional violation did not clearly deprive the defendant of a fair trial.

As a threshold matter, we note that the defendant maintains that we should resolve his claim by close scrutiny of the court’s circumstantial evidence instruction in isolation from the remainder of the charge. He argues that because the case was primarily proven by circumstantial evidence and because that instruction diluted the state’s burden of proof, this method of analysis is appropriate. We disagree. State v. Gonzalez, 206 Conn. 213, 227-28, 537 A.2d 460 (1988); State v. Hufford, 205 Conn. 386, 408, 533 A.2d 866 (1987).

“In considering the harmfulness of an erroneous instruction on circumstantial evidence, we have distinguished between cases where circumstantial evidence is the primary proof of an element of the crime and those where direct testimony plays the major role. Where the principal factual issue at trial is intent, which is typically proven by circumstantial evidence, we -will closely scrutinize the court’s instructions on circumstantial evidence, in isolation from the remainder of the charge, to determine whether the court misled the jury as to the state’s burden of proof. . . . Unlike intent, such issues as identity and whether the crime charged has occurred, are ordinarily proved by direct testimony with circumstantial evidence playing a subordinate role.” (Citation omitted; internal quotation marks omitted.) State v. McDonough, 205 Conn. 352, 358, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). In this case, the principal disputed issue was whether the crime occurred. The defendant denied that he committed the crime and claimed that Toddmann was the person who had put the drugs in the toilet. Because the ultimate factual issue was the credibility of the conflicting testimony of the witnesses and was not dependent on circumstantial evidence, we review the trial court’s instruction as a whole to determine whether it is reasonably possible that the jury was misled.

After a review of both the preliminary and final instructions, we conclude that the trial court did not misstate the rule of circumstantial evidence. During its final charge, the trial court stated that “[w]hile you must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying these conclusions need not be proven beyond a reasonable doubt.” The defendant claims that the trial court’s statement of the rule of circumstantial evidence confused and misled the jury and led to a dilution of the state’s burden of proof. In several cases, however, this court and our Supreme Court have used almost the same language as given in the trial court’s instruction. See State v. Lewis, 245 Conn. 779, 786, 717 A.2d 1140 (1998); State v. Torres, 242 Conn. 485, 489-90, 698 A.2d 898 (1997); State v. Teti, 50 Conn. App. 34, 39, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998); State v. Bond, 49 Conn. App. 183, 193, 713 A.2d 906, cert. denied, 247 Conn. 915, 722 A.2d 808 (1998). Accordingly, we find that the trial court’s circumstantial evidence instruction could not reasonably have misled the jury as to the state’s burden of proof and thus did not deprive the defendant of a fair trial. Furthermore, we find no merit to the defendant’s other claim that the trial court merged the definition of circumstantial evidence into the definition of direct evidence.

B

The defendant next argues that the trial court improperly instructed the jury on the definition of reasonable doubt and the jurors’ duties on deciding guilt. Specifically, the defendant claims that the instruction was inadequate because the trial court explained reasonable doubt by describing what a reasonable doubt is not and used the word “reasonable” in its definition. The defendant failed to preserve this claim at trial and now seeks review under State v. Golding, supra, 213 Conn. 239-40. The defendant concedes that both this court and our Supreme Court have rejected similar claims but urges this court to reconsider precedent. “This, we cannot do. We will not reexamine or reevaluate Supreme Court precedent. Whether a Supreme Court holding should be reevaluated and possibly discarded is not for this court to decide. ... As a result, the defendant is not entitled to Golding review of this issue.” (Citations omitted; internal quotation marks omitted.) State v. Eason, 47 Conn. App. 117, 123, 703 A.2d 130 (1997), cert. denied, 243 Conn. 962, 705 A.2d 552 (1998).

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury found the defendant not guilty of the tampering with physical evidence charge.

       The defendant claims that because Toddmann testified that she had attempted to flush the drugs down the toilet, the jury convicted the wrong person. We find no merit to this claim. “[T]he [jury] is free to juxtapose conflicting versions of events and determine which is more credible. . . . It is the [jury’s] exclusive province to weigh the conflicting evidence and to determine the credibility of witnesses. . . . The [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject. State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997). . . . State v. Foster, 45 Conn. App. 369, 379, 696 A.2d 1003, cert. denied, 243 Conn. 904, 701 A.2d 335 (1997).” (Internal quotation marks omitted.) State v. Pauling, 47 Conn. App. 483, 487-88, 706 A.2d 981 (1998).

       In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. “The first two questions relate to whether a defendant’s claim is renewable, and the last two relate to the substance of the actual review.” (Internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

       The trial court instructed the jury as follows: “Proof beyond a reasonable doubt does not mean that you must have direct evidence supporting the fact You may apply the rule of circumstantial evidence. This rule involves the offering of evidence or facts from which you are asked to infer the existence of another fact or set of facts. While you must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying these conclusions need not be proven beyond a reasonable doubt. If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all of the evidence proves the defendant guilty of all of the elements of the crime beyond a reasonable doubt. It is your right to draw inferences if you conclude that the facts you find proven reasonably establish other facts by reason and logic and are not the result of speculation, surmise or guesswork.”

       In numerous cases, this court and our Supreme Court have consistently recognized the constitutional inadequacy of a trial court’s instruction that an inference must be not only logical and reasonable, but strong enough so that the jury could find “it is more probable than not that the fact to be inferred is true”; (emphasis in original; internal quotation marks omitted) State v. Whelan, 200 Conn. 743, 755, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); because the charge diluted the state’s burden of proof. See State v. Hufford, supra, 205 Conn. 406-407; State v. Rodgers, 198 Conn. 53, 57-59, 502 A.2d 360 (1985); State v. Reddick, 197 Conn. 115, 131-32, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Dullivan, 10 Conn. App. 474, 477-78, 523 A.2d 1353 (1987); State v. Farrar, 7 Conn. App. 149, 152-56, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986).

       The defendant does not cite to a specific portion of the charge for his claim of inadequate instruction on the jurors’ duties. We, therefore, will consider this claim as a further challenge to the trial court’s instruction as to reasonable doubt.

       The trial court gave the following instruction as to reasonable doubt: “Every person, as you know, charged with the commission of a crime is presumed to be innocent until proven guilty. This means that at the time the accused was presented here for trial, he stood before you free from any bias, prejudice or burden arising from his position as the accused, and that so far as you are concerned, he then was innocent and he continues to be innocent until such time as the evidence and the matters produced here in the orderly conduct of the trial satisfy you beyond a reasonable doubt that he is guilty.
      “The accused does not have to prove that he did not commit the offense. The state must prove that he did. The presumption of innocence applies to each and every element of the crime. And I will define and explain those elements to you in a moment. The presumption of innocence does not have the effect of evidence itself. Its only effect is to place upon the state the burden of proving the defendant’s guilt beyond a reasonable doubt.
      “A reasonable doubt is not a doubt that is raised by one questioning simply for the salce of a doubt. It is not a surmise or a guess or a speculation or a doubt not founded upon the evidence or lack of evidence. It is not hesitation arising from feelings of sympathy or pity for the accused or his family. A reasonable doubt is one that is based upon reason and which grows out of the evidence or lack of evidence in llie case. A reasonable doubt is one that is reasonable in light of all of the evidence and one that is honestly entertained after a thorough and careful examination of all of the evidence in the case.
      “An absolute demonstration of guilt is not required to convict. The demon-st ration of guilt need be only beyond a reasonable doubt, one that a reasonable person can reasonably entertain after a fair evaluation of all of the evidence in the case.
      “The state does not have to prove every fact that comes into issue. It is only the essential elements of the crime which I will explain to you that must be proved beyond a reasonable doubt.”


author: SPEAR, J.

text:
    AFSCME, COUNCIL 4, LOCAL 1522, AFL-CIO v. CITY OF BRIDGEPORT
    (AC 17930)
    Schaller, Spear and Dupont, Js.
    Argued March 1
    officially released June 8, 1999

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellant (plaintiff).

      John P. Bohannon, Jr., associate city attorney, for the appellee (defendant).
   Opinion

SPEAR, J.

The plaintiff appeals from the judgment of the trial court denying its application to vacate an arbitration award issued in favor of the defendant city of Bridgeport. The plaintiff claims that the arbitration award should be vacated because the arbitrators’ interpretation of the contract exceeded their authority. We affirm the judgment of the trial court.

The following facts are undisputed. The plaintiff, the American Federation of State, County and Municipal Employees, Council 4, Local 1522 (union), and the defendant city are parties to a collective bargaining agreement. The union filed a grievance on behalf of eight of its members, claiming that the city had violated the agreement by denying holiday pay for certain union members who worked on December 31,1993, a holiday, but had called in sick the day before the holiday. Section 6.3 of the collective bargaining agreement provides that “[i]f any employee is required to work on a holiday, s/ he shall be paid double time plus holiday pay.” The city paid these workers double time pay for working on the holiday but did not pay them additional holiday pay.

The grievance proceeded via an unrestricted submission to the state board of mediation and arbitration. Relying on § 6.4 of the agreement, the arbitrators found for the defendant city. Section 6.4 provides in relevant part that “[e]mployees are required to work the day before a holiday and the day after a holiday, as defined in 6.1 in order to receive pay for the holiday . . . .” The plaintiff filed an application to vacate the arbitration award with the Superior Court. In denying the application, the trial court ruled that the arbitrators had not exceeded their powers in violation of General Statutes § 52-418 (a) (4), that the award was derived from the essence of the contract and that the arbitrators had not violated their duty to interpret the contract. This appeal followed.

The plaintiff asserts that the arbitrators’ interpretation of the collective bargaining agreement improperly created a new teim in the contract, thereby exceeding their powers. According to the plaintiff, the contract should be construed as follows. If an employee actually works on a holiday, § 6.3 applies and requires double pay plus holiday pay. If an employee does not work on the holiday, only then does § 6.4 apply to determine if that employee is entitled to holiday pay by virtue of having worked the day before and the day after the holiday. By ruling that when an employee works on a holiday, that employee must also work the day before and the day after the holiday to be entitled to full pay pursuant to § 6.3, the arbitrators, in effect, added a new term to the contract. The plaintiff argues that the ruling was improper because article X, § 10.1, of the agreement states in relevant part that “[t]he arbitrators shall not add to nor subtract from the terms of the agreement as written.” Even if the plaintiffs interpretation is correct, we disagree that the arbitrators were bound to so construe the contract.

“ ‘Ordinarily, where the authority to arbitrate devolves from contract, an unrestricted submission carries with it the power to decide, with finality, all issues of fact or law in the proceedings.’ North Haven Assn. of Educational Support Staff v. Board of Education, 209 Conn. 280, 285, 550 A.2d 1077 (1988). Where the submission is unrestricted, this court will not review the arbitrators’ determination of questions of law. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 154, 523 A.2d 1271 (1987).” Bodner v. United Services Automobile Assn., 222 Conn. 480, 501, 610 A.2d 1212 (1992). The plaintiff does not dispute that the submission here was unrestricted.

“Even in the case of an unrestricted submission, we have, however, recognized three grounds for vacating an award: (1) the award rules on the constitutionality of a statute; Caldor, Inc. v. Thornton, 191 Conn. 336, 344, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S. Ct. 2914, 86 L. Ed. 2d 557 (1985); (2) the award violates clear public policy; Watertown Police Union Local 541 v. Watertown, 210 Conn. 333, 339, 555 A.2d 406 (1989); or (3) the award contravenes one or more of the statutory proscriptions of § 52-418.” Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992). The plaintiff does not claim either of the first two exceptions. Therefore, we will determine only whether the award violates § 52-418 (a) (4).

Section 52-418 (a) provides in relevant part: “Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects ... (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” “In deciding whether the arbitrator has exceeded his power under § 52-418 (a) (4), we compare the award with the submission to determine if the award and the submission conform. See New Haven v. AFSCME, Council 15, Local 530, 208 Conn. 411, 415, 544 A.2d 186 (1988); Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986). . . . The burden of demonstrating the nonconformity of the award to the submission is on the party seeking to vacate the award. . . . Every reasonable presumption will be made in order to sustain an award.” (Citations omitted; internal quotation marks omitted.) Fraulo v. Gabelli, 37 Conn. App. 708, 716-17, 657 A.2d 704 (1995), cert. denied, 239 Conn. 947, 686 A.2d 125 (1996).

Upon a comparison of the submission to the decision of the arbitrators, we conclude that the arbitrators’ decision conforms to the broad unrestricted submission. The plaintiff is essentially offering a different interpretation of the contract. As the trial court noted, however, a mere difference of opinion as to the construction of the contract does not establish that the arbitrators exceeded their authority. Accordingly, the trial court properly denied the application to vacate, correct or modify the award.

The judgment is affirmed.

In this opinion the other judges concurred.

       The parties submitted the following joint issue: “What disposition shall be made in case number: 9495-A-265?” The arbitrators’ award stated that “the grievance must be denied.”


author: LAVERY, J.

text:
    STATE OF CONNECTICUT v. CESAREO HERNANDEZ
    (AC 17894)
    O’Connell, C. X, and Lavery and Sullivan, Js.

      Argued February 22
    officially released June 8, 1999

      Carolyn K. Longslreth, assistant state’s attorney, with whom were Carl E. Taylor, senior assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellant (state).

      Teri E. Bayer, for the appellee (defendant).
   Opinion

LAVERY, J.

The state appeals with the permission of the trial court from the judgment dismissing the case against the defendant, Cesáreo Hernandez, upon the state’s refusal to comply with the trial court’s order to disclose to the defendant the identity of a confidential informant. The state claims that the trial court improperly ordered it to disclose to the defendant the identity of the informant because (1) there is no evidence in the record to support a predicate factual finding that underlies the trial court’s decision to order disclosure, (2) the informant was a mere “tipster” who neither participated in nor witnessed the specific events that formed the basis of the charged crimes, (3) the informant’s testimony is irrelevant to the issues in dispute and (4) the informant’s testimony is cumulative of the testimony of other witnesses. We affirm the judgment of the trial court.

The record discloses the following information that is relevant to the issues on appeal. The signed affidavit, which the police submitted in support of their application for a search and seizure warrant for the defendant’s apartment, discloses that on February 18, 1995, at approximately 5 p.m., a confidential informant contacted Detectives Anthony Martinez and Stephen Gra-bowski of the Hartford police department. The informant stated that “Munie,” whom the detectives recognized as Louis Rosario, would be packaging heroin in the first floor apartment of 94 Whitmore Street in Hartford. The informant also stated that Rosario drove a red Camaro. At approximately 6 p.m., the detectives observed Rosario and an unidentified Hispanic male exit the first floor apartment at 94 Whitmore Street and travel to Rosario’s home at 3 Mannz Street in Hartford.

On that same day, at approximately 6:30 p.m., the detectives met with the informant. The informant stated that he had observed Rosario and another Hispanic male, whom he knew as Luis Martinez, bring a large amount of heroin into the first floor apartment at 94 Whitmore Street and that “as we speak they are packaging heroin . . . .” The detectives returned to 94 Whit-more Street and observed that Rosario’s red Camaro was parked outside the apartment building.

The detectives subsequently obtained a search and seizure warrant for the first floor apartment at 94 Whitmore Street. The police incident report discloses that on February 18, 1995, at approximately 8:30 p.m., the detectives executed the warrant. Several minutes after the police gained entiy, the defendant and his wife, Andrea Hernandez, returned to the apartment. The police seized 100 glassine bags from a dresser drawer in the defendant’s bedroom, and the powder in these bags later tested positive for heroin.

The state filed a substitute information charging the defendant with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), conspiracy to sell narcotics by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 (a) and 2 la-278 (b), conspiracy to sell narcotics within 1500 feet of a school in violation of General Statutes §§ 53a-48 (a) and 21a-278a (b) and possession of drug paraphernalia in violation of General Statutes § 2 la-267 (a).

On October 20, 1995, the defendant filed a notice of alibi, and on November 29,1995, he filed a supplemental notice of alibi. He claimed that several witnesses would testify that on February 18, 1995, he was not in the apartment during the period in question. On November 13, 1997, the defendant filed a motion for disclosure of the identify of the state’s informant. After applying the balancing test set forth in Roviaro v. United States, 353 U.S. 53, 62, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), the trial court granted the defendant’s motion for disclosure of the identity of the informant. Because the state refused to disclose to the defendant the identity of the informant, the trial court dismissed the case. The state filed a motion for permission to appeal, which was granted by the trial court. This appeal followed.

I

As a threshold matter, the state claims that there is no evidence in the record to support a predicate factual finding that underlies the trial court’s decision to order disclosure of the identity of the informant. Specifically, the state contends that there is no basis in the record for the trial court to find that the informant was in the defendant’s apartment when Rosario and Martinez arrived with heroin and packaged it. The state claims that, if the informant was not present in the apartment during this period, then disclosure of his identity was not warranted. We conclude that the trial court’s predicate factual finding was not clearly erroneous.

The trial court determined that “[i]t may reasonably be inferred from the [warrant] affidavit that the informant told the police that he had been in the apartment while Rosario and Martinez were packaging the drugs.” We accord great deference to the trial court’s factual findings. “ ‘[T]he factual findings of a trial court on any issue are reversible only if they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ’ . . . Schult v. Schult, 40 Conn. App. 675, 682, 672 A.2d 959 (1996), aff'd, 241 Conn. 767, 699 A.2d 134 (1997).” Rolla v. Rolla, 48 Conn. App. 732, 737, 712 A.2d 440, cert. denied, 245 Conn. 921, 717 A.2d 237 (1998).

The signed affidavit, which the detectives submitted in support of their application for a search and seizure warrant for the defendant’s apartment, states that “the affiants on 2-18-95 at approximately 1830 hours met with the informant who stated that he observed [Rosario] and another Hispanic male who he knows as Luis Martinez bring a large amount of heroin into the apartment at 94 Whitmore Street, first floor apartment. . . . The informant stated that Rosario . . . had returned to 94 Whitmore Street and that as we speak they are packaging heroin in the targeted location.” (Emphasis added.)

On the basis of our review of the record, we conclude that the trial court’s finding that the informant was in the apartment when Rosario and Martinez arrived with the heroin and then packaged it was not clearly erroneous.

II

The state next claims that, even if we assume that the informant witnessed Rosario and Martinez bring heroin into the apartment and package it, the trial court abused its discretion by ordering the state to disclose to the defendant the identity of the informant because the informant was a mere “tipster” who neither participated in nor witnessed the specific events that formed the basis of the possessory narcotics offenses with which the defendant was charged. We do not agree.

The state claims that even if the informant observed Rosario and Martinez bring heroin into the apartment and package it, the informant did not witness the subsequent events that formed the basis for the defendant’s possessory narcotics charges: the discovery of heroin in the defendant’s apartment and the incriminating statements the police claim the defendant made when he was arrested. Accordingly, the state claims that the trial court abused its discretion by ordering disclosure because the informant was a mere “tipster” who neither participated in nor witnessed the specific events that formed the basis for the possessory narcotics offenses with which the defendant was charged.

After applying the balancing test set forth in Roviaro v. United States, supra, 353 U.S. 62, the trial court concluded that the defendant’s need for disclosure of the identity of the informant outweighed the state’s legitimate interest in preserving the informant’s anonymity. The trial court concluded that disclosure of the informant’s identity was necessary because “[t]he informant’s information as may be inferred from the affidavit directly relates to the defenses asserted by the defendant. The information, and potentially the informant’s testimony in court, could be highly exculpatory of the defendant. Indeed, that information and testimony could potentially exonerate him.”

When called on to determine the propriety of a trial court’s decision to order disclosure to the defendant of the identity of a confidential informant, we must decide whether the trial court abused its discretion in ruling as it did. State v. McDaniel, 176 Conn. 131, 132-33, 405 A.2d 68 (1978); State v. Johnson, 162 Conn. 215, 229, 292 A.2d 903 (1972); State v. Kiser, 43 Conn. App. 339, 347, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997). “In determining whether the trial court has abused its discretion, we make every reasonable presumption in favor of the correctness of its action. . . . Our review of a trial court’s exercise of the legal discretion vested in it is limited to the questions of whether the trial court correctly applied the law and could reasonably have reached the conclusion that it did.” (Citation omitted; internal quotation marks omitted.) Burke v. Avitabile, 32 Conn. App. 765, 771, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).

“The United States Supreme Court’s decision in Rovi-aro v. United States, [supra, 353 U.S. 53], provides a starting point for our analysis of how courts should balance the state’s interest in protecting informants against the defendant’s interest in obtaining information useful in conducting Ms defense. Courts have recognized an mformant’s privilege. ‘What is usually referred to as the mformer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’ . . . Id., 59.” State v. Richardson, 204 Conn. 654, 657-58, 529 A.2d 1236 (1987).

“One limitation on this privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. . . . [Roviaro v. United States, supra, 353 U.S. 60-61], Thus, when disclosure is required, it is not because of any police misbehavior that must be the subject of a sanction.

“There is no fixed rule with respect to disclosure .... The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. . . . Id., 62.” (Mtemal quotation marks omitted.) State v. Kiser, supra, 43 Conn. App. 348.

“[M]ere speculation that the informant’s information will be helpful to the defense is not sufficient to mandate disclosure. . . . State v. Richardson, [supra, 204 Conn. 663]; see also State v. Harris, 159 Conn. 521, 529, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971). The defendant bears the burden of demonstrating the need for disclosure of an informer’s identity. State v. West, 178 Conn. 444, 446, 423 A.2d 117 (1979).” (Internal quotation marks omitted.) State v. Kiser, supra, 43 Conn. App. 349.

With those principles in mind, we must determine whether the trial court abused its discretion by ordering the state to disclose to the defendant the identity of the informant. In the present case, the defendant was charged with possession of narcotics with the intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, conspiracy to sell narcotics by a person who is not drug-dependent, conspiracy to sell narcotics within 1500 of a school and possession of drug paraphernalia. “To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990) . . . .” (Citation omitted.) State v. Cruz, 28 Conn. App. 575, 579, 611 A.2d 457 (1992). The defendant claims that someone else brought the heroin into his apartment when he was not at home, that he lacked knowledge of its presence and that he did not exercise dominion and control over it.

The trial court found that the informant was present in the apartment when Rosario and Martinez arrived with heroin and packaged it, and we have already concluded that that predicate factual finding was not clearly erroneous. Because the informant was present in the apartment at that time, the informant can testify as to whether the defendant was also present in the apartment, had knowledge that Rosario and Martinez arrived with heroin and exercised dominion and control over the heroin. Moreover, on the basis of the trial court’s finding that the informant was in the apartment when Rosario and Martinez packaged heroin, the informant could potentially testify as to whether Rosario and Martinez packaged the 100 bags of heroin the police seized from the defendant’s apartment. Because the 100 bags of heroin were packaged in distinctive yellow glassine bags labeled “terremoto,” the informant could potentially testify whether this packaging matched the packaging used by Rosario and Martinez. It is beyond mere speculation that the foregoing information is material to the defendant’s defense to the possessory narcotics charges.

It bears emphasis that the informant witnessed persons other than the defendant bring heroin into the defendant’s apartment only a few hours before the police seized heroin from the same apartment, and the defendant claims that he was not present in the apartment at that time. The warrant affidavit discloses that the detectives’ first communication with the informant was at 5 p.m. and the execution of the search and seizure warrant was at 8:30 p.m. The detectives observed Rosario and Martinez at the apartment, but not the defendant. The informant named only Rosario and Martinez as arriving at the apartment and packaging heroin, and the informant did not place the defendant there.

In light of the deferential standard that constrains our review of the decision of the trial court, we cannot say, on the basis of the record before us, that the trial court abused its discretion by ordering the state to disclose to the defendant the identity of the informant. Although we are not bound by precedent from other states, we note for illustrative purposes that in factually similar circumstances, several appellate courts from other states have either ordered disclosure or affirmed a trial court’s order of disclosure. See Honore v. Superior Court of Alameda County, 70 Cal. 2d 162, 165, 74 Cal. Rptr. 233, 449 P.2d 169 (1969); State v. McEachern, 114 N.C. App. 218, 221, 441 S.E.2d 574 (1994); State v. Petrina, 73 Wash. App. 779, 785-87, 871 P.2d 637 (1994); see also People v. Hardeman, 137 Cal. App. 3d 823, 829, 187 Cal. Rptr. 296 (1982) (where defendant charged with constructive possession of narcotics imputed by police discovery of contraband in certain location, disclosure of nonparticipating, noneyewitness informant required only if informant had recent observation of contraband in location and if evidence shows that persons other than defendant in location when informer observed contraband and that defendant was not or may have not been present).

The state contends that several factually similar cases from this court and our Supreme Court establish that the trial court abused its discretion by ordering the state to disclose to the defendant the identity of the informant. See State v. Richardson, supra, 204 Conn. 664-67; State v. Conger, 183 Conn. 386, 392-93, 439 A.2d 381 (1981); State v. Johnson, supra, 162 Conn. 227-29; State v. Harris, supra, 159 Conn. 526-29; State v. Kiser, supra, 43 Conn. App. 346-50. We disagree and conclude that each of those cases is distinguishable for three reasons.

First, none of those decisions established a fixed rule that prohibits trial courts from ordering disclosure in every case where the informant neither witnessed nor participated in the specific events that formed the basis for the charged crime. A fixed rule would be inconsistent with our Supreme Court’s repeated pronouncement that “no fixed rule with respect to disclosure is justifiable” because the determination of whether disclosure is warranted depends on the particular circumstances of each case. (Internal quotation marks omitted.) State v. Richardson, supra, 204 Conn. 658; State v. West, supra, 178 Conn. 445; State v. McDaniel, supra, 176 Conn. 133; State v. Johnson, supra, 162 Conn. 228 (“no fixed rule can be formulated as to when disclosure is required so that each case must be decided on its own facts”). Second, the holding in each of those cases must be considered in light of the deferential standard that constrained the court’s review of the decision of the trial court. Precedent establishes that appellate review in such cases is limited to a determination of whether the trial court abused its discretion in ruling as it did. State v. McDaniel, supra, 132-33; State v. Johnson, supra, 229. In each of those cases, the reviewing court affirmed the trial court’s decision to deny the defendant’s motion for disclosure on the basis of the record before it. Further, in contrast to the present case, none of the defendants in those cases established beyond mere speculation that disclosure of the identity of the informant was material to his defense.

Ill

The state next claims that the trial court abused its discretion by ordering the state to disclose to the defendant the identity of the informant because the informant’s testimony is irrelevant to the disputed issues in this case. We disagree.

The state contends that the informant did not witness the specific events that formed the basis for the charged crimes: the seizure of heroin from the defendant’s apartment and the incriminating statements the police allege the defendant made when he was arrested. The defendant claims that he lacked knowledge of the presence of heroin in his apartment and he did not exercise dominion and control over it. He also claims that at trial he will deny having made any incriminating statements to the police. Because the informant did not witness those events, the state contends that the trial court’s decision to order disclosure of the informant’s identity constituted an abuse of discretion because the informant’s testimony is irrelevant to the disputed issues in this case—whether the defendant had knowledge of the presence of heroin and exercised dominion and control over it, and whether he made incriminating statements to the police at the time of his arrest.

The state’s third claim is foreclosed by our discussion in part II of this opinion. In our discussion of the state’s second claim, we concluded that, although the informant was not present when the police seized heroin from the apartment and the defendant allegedly made incriminating statements to the police, the trial court did not abuse its discretion by granting the defendant’s motion for disclosure because the record discloses that the informant possesses information that is material to the defendant’s defense to the possessory narcotics charges. Although the state claims that it can prove its case against the defendant without utilizing any testimony from the informant, it does not follow that the informant’s testimony is therefore immaterial to the defense. See DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991) (although informant’s testimony not material to state’s case, same cannot be said regarding defense of entrapment).

IV

In its final claim, the state contends that the trial court abused its discretion by ordering the state to disclose to the defendant the identity of the informant because the informant’s testimony is cumulative of other available witnesses. We do not agree.

The state claims that nondisclosure of the identity of the informant would not deprive the defendant of the opportunity to establish that he was absent l'rom the apartment during the period in question. The defendant filed a notice of alibi and a supplemental notice of alibi claiming that several witnesses would testify that he was not in his apartment during the period in question. The trial court found that the informant was in the defendant’s apartment when Rosario and Martinez arrived with heroin and packaged it. As such, the informant has personal knowledge of persons other than the defendant bringing heroin into the apartment and the approximate time that these persons brought heroin into the apartment. The warrant affidavit discloses only that the detectives obseived Rosario and Martinez exit the defendant’s apartment and later noticed Rosario’s automobile parked outside the apartment. The record does not disclose that the detectives or any other available witnesses observed Rosario and Martinez bring heroin into the defendant’s apartment and package it. Although the alibi witnesses can testify that the defendant was not in the apartment during the period in question, that testimony is insignificant in the absence of the informant’s testimony that Rosario and Martinez brought heroin into the apartment during the period when the alibi witnesses claim that the defendant was not at home.

Moreover, because the trial court found that the informant was present in the apartment when the heroin was being packaged, the informant likely has personal knowledge as to whether Rosario and Martinez packaged the 100 bags of heroin that were seized by the police. Because the heroin seized by the police was packaged in distinctive yellow glassine bags labeled “terremoto,” the informant could potentially identify whether Rosario and Martinez packaged these narcotics. The record does not disclose that the detectives or any other available witnesses have personal knowledge of this information. We therefore conclude that the informant’s testimony was not cumulative of other available witnesses.

The judgment is affirmed.

In this opinion the other judges concurred.

        “Roviaro involved the application of federal evidentiary rules, and the decision did not rest on constitutional grounds.” State v. Richardson, 204 Conn. 654, 658, 529 A.2d 1236 (1987).


author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. JOSE RAMOS
    (AC 17739)
    O’Connell, C. J., and Schaller and Sullivan, Js.
    Argued February 17
    officially released June 15, 1999

      Auden Grogins, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Jose Ramos, appeals from a judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (2). The jury acquitted the defendant of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). The defendant claims that the trial court improperly denied his postverdict motion for judgment of acquittal on the charge of risk of injury to a child on the ground of insufficient evidence because his acquittal on the charge of sexual assault in the first degree constituted a rejection of the only evidence on which the risk of injury charge could have been based. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The victim was five years old at the time of the incident in August, 1996, and six years old at the time of trial. He lived with his parents and brother. Both of the victim’s parents worked, and his maternal aunt, Grizelda Ramos, baby-sat for him and his younger brother. When Grizelda Ramos obtained employment, it was agreed that her husband, the defendant, would baby-sit for them.

The defendant had baby-sat for the victim for approximately one week before the incident in question occurred. The victim testified that, on August 28, 1996, the defendant asked him to go into the bathroom with the defendant and not to tell his mother. The defendant shut the bathroom door without locking it. The defendant then told the victim to remove his shorts. The defendant also removed his own pants. The victim told the defendant that he wanted lunch, and the defendant said, “Wanna eat this, my penis?” At that point, in the victim’s words, “[the defendant] put his penis in my butt.” At that time, the victim was lying down on the outside of the bathtub and the defendant was standing behind him. When the victim told the defendant that it hurt, the latter said he would do it softly.

Later that day, the victim’s father came and got the victim and his brother and took them home. The victim did not tell his father what had happened. That same day, the victim told his mother about the incident as she was driving him to his grandmother’s house. The victim’s grandmother testified that she examined the victim’s rectum that day and noticed nothing but she advised her daughter to take him to a physician.

The victim’s grandfather, who testified for the defense, stated that on August 28, 1996, the victim and his mother came to his house. The victim told his grandfather that he wanted to tell him something. He then proceeded to tell him about the incident. The grandfather told his wife what the victim had told him. The grandmother then took the victim into a bedroom and examined him. The grandfather said that the victim’s mother first heard about the incident when the victim’s grandmother examined the victim. The victim’s mother then started to cry and yell. After the victim’s grandmother examined him, she and her husband went to the defendant’s home and confronted him with the victim’s allegations. At that time, the defendant called the victim’s mother, who was still at her parents’ home, and told her if she did not believe him to take the victim to the emergency room and check it out.

Two days later, the victim was examined by Peter McLaughlin, a physician, who found no evidence of tearing, redness, rawness, bruises or contusions. The victim tested negative for sexually transmitted diseases.

The defendant testified that in August, 1996, he was taking care of the victim and his brother for a short time. He denied the victim’s allegations and said he never went into the bathroom with the victim.

To be convicted of sexual assault in the first degree in violation of § 53a-70 (a) (2) it must be proven beyond a reasonable doubt that a person had sexual intercourse with a person who was under the age of thirteen and that the perpetrator was more than two years older than the victim. General Statutes § 53a-65 (2) defines sexual intercourse as “vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. ...”

To be convicted of the crime of risk of injury to a child under § 53-21 (2), it must be proven beyond a reasonable doubt that a person had contact with an intimate part of a child under the age of sixteen or who subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child.

The core issue in this matter is whether there was sufficient evidence for the jury to find the defendant guilty of risk of injury to a child. The defendant claims that, since the jury found that the defendant did not have sexual intercourse with the victim, he could not have been found guilty of having contact with an intimate part of the victim because the sexual assault acquittal meant that the jury rejected the evidence needed to convict him of risk of injury. We disagree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [trier of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Torres, 242 Conn. 485, 489, 698 A.2d 898 (1997). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty. Id., 490.” (Internal quotation marks omitted.) State v. Kondracki, 51 Conn. App. 338, 342, 721 A.2d 567 (1998).

“We are guided by the well established principle that ‘[t]he trier of fact may accept or reject the testimony of any witness.’ State v. Martin, 38 Conn. App. 731, 744, 663 A.2d 1078 (1995), cert. denied, 237 Conn. 921, 676 A.2d 1376 [cert. denied, 519 U.S. 1044, 117 S. Ct. 617, 136 L. Ed. 2d 541] (1996). It is the trier of fact’s ‘exclusive province to weigh the conflicting evidence and determine the credibility of witnesses.’ State v. Hooks, 30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993). We give deference to the evidence and the reasonable inferences drawn therefrom that support the trial court’s determination of guilt. State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997).” State v. Kondracki, supra, 51 Conn. App. 342-43.

The victim’s testimony that the defendant “put his penis in my butt,” if believed by the jury, could prove the crime of risk of injury to a child. For purposes of risk of injury, the jury did not need to determine that there was any anal penetration. Mere contact between the defendant’s penis and the victim’s anus or buttocks would have sufficed. The jury reasonably could have found that while the victim’s testimony did not establish that penetration occurred, it was sufficient to establish that the requisite contact occurred. Because the evidence in this case reasonably supports the inference of such contact, we conclude that trial court properly denied the defendant’s motion for judgment of acquittal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 provides in relevant part: “Any person who . . . (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of a class C felony.”
      General Statutes § 53a-65 (8) provides: “ ‘Intimate parts’ means the genital area, groin, anus, inner thighs, buttocks or breasts.”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . . .”