text:
    State of Connecticut v. Curtis Sims
    (5211)
    Dupont, C. J., Borden and Hennessy, Js.
    Argued May 7
    decision released September 8, 1987

      Elizabeth A. Curry, special public defender, for the appellant (defendant).

      Robert J. Devlin, Jr., assistant state’s attorney, with whom, on the brief, was Arnold Markle, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant is appealing from a judgment of conviction, after a jury trial, of the crimes of robbery in the second degree, in violation of General Statutes § 53a-135 (a) (1), larceny in the second degree, in violation of General Statutes § 53a-123 (a) (3), and assault of a victim sixty or older in the third degree, in violation of General Statutes § 53a-61a (a). The defendant claims that the trial court committed error (1) by denying his motion to suppress the victim’s show-up identification testimony, (2) by denying his motion for mistrial on the ground that a juror and a witness were acquainted, (3) by denying his request for a bill of particulars, and (4) in failing to strike the testimony of police officers concerning the crime due to the erasure of the police broadcast tape for the date of the crime.

The jury could reasonably have found certain relevant facts. The victim, a sixty-five year old man, walked out to his station wagon which was parked in front of his apartment building. He noticed three or four black males standing across the street. They asked him for a cigarette, to which he responded that he had none. While raising the tailgate to his station wagon, the victim was attacked and pushed into a snowbank. The assailants seized the victim’s wallet, ripping his pants pocket in the process. He was struck in the face and suffered minor injuries. The victim was unsure of how many individuals attacked him.

The victim saw two of his assailants flee, and briefly attempted to chase them. As he did so, he noticed their clothing. One was dressed in a distinctive brown, furry hat and light colored jacket. The other was wearing a brown jacket and dungarees. Although the victim did not see their faces, he observed that his assailants were black males. The crime was committed in the evening and its scene was illuminated by streetlights.

A neighbor called the police, to whom the victim gave the description of his attackers. The description was broadcast by police radio. Two undercover police officers in the area received the broadcast and saw three individuals who matched the description. The officers recognized two of the individuals from prior police investigations. As the unmarked police car pulled to the curb, one of the suspects yelled “Cops,” and all three began to run. One suspect, Todd Branham, was immediately apprehended. The second suspect eluded the police and was never caught. After an extended chase, the third suspect, the defendant, was caught hiding beneath a parked car. The victim, who by invitation had entered a police car and heard on the radio the progress of the chase, was brought to a nearby supermarket parking lot to identify the two suspects.

The two suspects were individually shown to the victim. The victim identified Branham on the basis of his jacket and distinctive furry hat. The victim then also identified the defendant by his brown jacket. The fact that the defendant’s clothes were wet, due to the earlier altercation in the snow, aided the victim’s identification of the defendant. Branham subsequently confessed to the robbery, and testified for the prosecution. Prior to the commencement of summation by counsel, Branham notified the state’s attorney’s office that he was acquainted with one of the jurors. The trial judge, after meeting in chambers on the record with counsel and the juror, returned the juror to the jury. The defendant’s motion for a mistrial, based on the relationship between the juror and Branham, was denied. There were no alternate jurors.

I

In his first claim of error, the defendant asserts that the trial court erred in denying his motion to suppress the victim’s out-of-court show-up identification of the defendant. Whether an identification procedure offends a defendant’s due process rights depends on (1) whether it was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nonetheless reliable based on the totality of the circumstances. State v. Amarillo, 198 Conn. 285, 293, 503 A.2d 146 (1986); State v. Tate, 9 Conn. App. 141, 144, 516 A.2d 1375 (1986).

While a one-on-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive, it does not automatically follow that such a show-up is impermissibly suggestive. State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986). Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay. State v. DeJesus, 7 Conn. App. 309, 315-16, 508 A.2d 463 (1986).

The show-up in this case occurred only thirty-five minutes after the crime was committed. The defendant fit the description given to the police by the victim, and had fled when he observed approaching police officers. It was important for the police to determine promptly whether the defendant was involved. Under the circumstances of this case, the confrontation between the victim and the defendant was reasonably necessary, and a permissible investigative technique. See, e.g., State v. Mitchell, 204 Conn. 187, 198-99, 527 A.2d 1168 (1987); State v. Collette, supra, 311; State v. Hamele, 188 Conn. 372, 377-78, 449 A.2d 1020 (1982); State v. Tate, supra, 145.

Even if we were to assume that the confrontation was unnecessarily suggestive, we conclude that under the totality of the circumstances the victim’s identification of the defendant was sufficiently reliable to be admitted into evidence. The factors to be considered in determining the reliability of an identification “include the opportunity of the [victim] to view the criminal at the time of the crime, the [victim’s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time lapse between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v.Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

In this case, the victim had a clear opportunity to observe the defendant as he fled the scene of the crime. The area was amply illuminated by streetlights. The victim had looked attentively at the defendant as the victim briefly attempted to chase the defendant. The victim’s description of the defendant’s clothing, while not exceptionally detailed, was accurate enough for the police to suspect the defendant. The description was certainly close enough to the mark to permit a jury to assess its ultimate correctness. The victim identified the defendant with a high degree of certainty at the confrontation. Further, the extremely short span of time between the crime and the show-up supports the reliability of the identification. Therefore, in view of the totality of the circumstances in this case, the trial court did not err in refusing to suppress the identification evidence. See State v. Mitchell, supra.

II

The defendant’s second claim of error is the trial court’s denial of his motion for a mistrial based on the acquaintance of the state’s principal witness with a juror. The court held an in camera hearing on the record with counsel and the juror, Darryl Toney. The court informed counsel that it alone would question the juror. Satisfied of Toney’s impartiality, the trial judge returned him to the jury. Following the hearing, the defendant moved for a mistrial, claiming that the acquaintance between the juror and the state’s witness substantially prejudiced his case. The court denied the motion for mistrial.

The right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); State v. Ziel, 197 Conn. 60, 64, 495 A.2d 1050 (1985). “ ‘Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.’ ” Irvin v. Dowd, supra, 724-25, quoting United States v. Wood, 299 U.S. 123, 145-46, 57 S. Ct. 177, 81 L. Ed. 78 (1936). The trial court is vested with wide discretion in determining the competency of jurors to serve, and that judgment will not be disturbed absent a showing of an abuse of discretion. United States v. Tegzes, 715 F.2d 505, 509 (11th Cir. 1983); United States v. Carlin, 698 F.2d 1133, 1135 (11th Cir.), cert. denied, 461 U.S. 958, 103 S. Ct. 2431, 77 L. Ed. 2d 1317 (1983); State v. Ziel, supra, 65.

Not every incident of juror misconduct requires a new trial. United States v. Klee, 494 F.2d 394, 396 (9th Cir.), cert. denied, 419 U.S. 835, 95 S. Ct. 62, 42 L. Ed. 2d 61 (1974). If Branham’s acquaintance with the juror could be considered a form of jury misconduct, the test is “whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” Id.; State v. Cubano, 203 Conn. 81, 91, 523 A.2d 495 (1987). A trial court has a large measure of discretion in dealing with a motion for mistrial; State v. Cubano, supra, 93; State v. Martinez, 173 Conn. 541, 543-44, 378 A.2d 517 (1977); State v. Grant, 8 Conn. App. 158, 163-64, 511 A.2d 369 (1986); and its decision as to the fairness of the trial must be afforded great weight. State v. McCall, 187 Conn. 73, 77, 444 A.2d 896 (1982); State v. Grant, supra.

Under the circumstances of this case, the denial of the defendant’s motion for mistrial was within the reasonable exercise of the trial court’s broad discretion. Upon notification of the acquaintance between Branham and Toney, the court promptly held an in camera hearing, on the record, with the juror and both counsel present. The court’s questioning of Toney revealed that the contacts between Toney and the witness were minimal. Indeed, Toney had not even initially recognized Branham. Toney indicated during the court’s inquiry that he felt he could be a fair and impartial juror, and that his judgment would be unaffected by his slight acquaintance with Branham. While we recognize that a juror’s assurances that he or she is equal to the task are not dispositive of the rights of an accused; Murphy v. Florida, 421 U.S. 794, 800, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); we are also aware of the broad discretion of a trial judge which includes his determination of the credibility to be given a juror’s statement in this context. United States v. Thompson, 744 F.2d 1065, 1068 (4th Cir. 1984); State v. Cubano, supra, 92. The conclusion of the trial court that Toney was capable of sitting impartially and rendering a true and just verdict must stand. State v. Bowen, 167 Conn. 526, 531, 356 A.2d 162 (1935); State v. Grant, supra, 164.

Ill

The defendant next claims that the trial court erred in denying his request for a bill of particulars. We disagree.

“ ‘The function of the bill of particulars ... is to enable the defendant to obtain a more precise statement of the offense charged in the information in order to prepare a defense.’ ” State v. Frazier, 194 Conn. 233, 236, 478 A.2d 1013 (1984); State v. Liebowitz, 7 Conn. App. 403, 416, 509 A.2d 43 (1986). A motion for a bill of particulars is addressed to the sound discretion of the trial court; State v. Stepney, 191 Conn. 233, 241, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984); State v. Brown, 173 Conn. 254, 257, 377 A.2d 268 (1977); State v. Beaulieu, 164 Conn. 620, 624, 325 A.2d 263 (1973); and its denial will only be overturned upon a clear showing of prejudice to the defendant. State v. Frazier, supra; State v. Liebowitz, supra. The defendant argues that the denial of his request for a bill of particulars prevented him from adequately preparing a double jeopardy defense. The defendant’s double jeopardy rights are not implicated in this case. The defendant has not demonstrated that he suffered prejudice from the denial of his motion for a bill of particulars.

IV

The defendant’s final claim of error is that his convictions must be reversed because the state failed to comply with the disclosure provisions of the rules of practice. The trial court granted the defendant’s motion to disclose the police broadcast tapes connected with the defendant’s arrest. The tapes, however, were unavailable due to their erasure for reuse, prior to the request, by the New Haven police department. The defendant then filed a motion to strike the testimony of the police officers concerning the arrest. The defendant claims as error the trial court’s denial of his motion to strike.

“Since access to the statements of witnesses for the prosecuting authority is not a constitutional right; United States v. Augenblick, 393 U.S. 348, 356, 89 S. Ct. 528, 21 L. Ed. 2d 537 (1969), on remand, 509 F.2d 1157 (Ct. Cl.), cert. denied, 422 U.S. 1007, 95 S. Ct. 2628, 45 L. Ed. 2d 669 (1975); State v. Pikul, 150 Conn. 195, 202, 187 A.2d 442 (1962); the burden of showing prejudice rests on the defense.” State v. Gonzales, 186 Conn. 426, 436 n.8, 441 A.2d 852 (1982); State v. Anonymous (83-FG), 190 Conn. 715, 736, 463 A.2d 533 (1983).

Our Supreme Court has recently considered similar claims involving the erasure of tape recorded evidence. See State v. Pollitt, 205 Conn. 61, 530 A.2d 155 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Milum, 197 Conn. 602, 500 A.2d 555 (1985); State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982).

In State v. Mullings, supra, the destruction of a witness’s tape recorded statement to the police was at issue. The court held that in the absence of bad faith on the part of the police department, “we have continued to adhere to the balancing test set forth in Shaw and Myers in determining whether a witness’s testimony should be stricken.” Id., 10. Whether or not sanctions for nondisclosure should be imposed depends upon the extent of the state’s culpability in failing to make disclosable material available to the defense, when weighed against the amount of prejudice to the defense which resulted from the nondisclosure. State v. Shaw, supra, 386. “[TJhis approach gives broad discretion to the trial court.” State v. Mullings, supra.

We conclude that the police department’s actions in this case were not conducted in bad faith. Our review of the record indicates that the New Haven police department attempted to comply with the Connecticut Supreme Court’s directive to discontinue routine erasure of tape recorded material. State v. Milum, supra, 617; State v. Myers, supra, 466-68. Although the erasure in this case demonstrates that the police policy in this regard is far from perfect, it does negate an inference of bad faith. It now must be determined whether the defendant has demonstrated the requisite degree of prejudice from the failure to disclose the police broadcast tapes so as to justify the imposition of sanctions against the state.

The defendant argues that the failure to disclose the police tapes was prejudicial in that, were they available, (1) he “might have” prevailed in suppressing the victim’s identification testimony, and (2) the credibility of Branham would have been weakened. Even without the tapes, the defendant had ample opportunity to demonstrate that the victim’s identification was impermissibly suggestive. Defense counsel conducted extensive examination of the victim concerning the circumstances surrounding the identification. Defense counsel also had copies of the police incident reports prepared by the officers involved in the broadcast. The availability of alternative sources for the missing material is a key factor in determining whether the defendant’s case was prejudiced. State v. Milum, supra, 617-18; State v. Myers, supra, 467. We therefore conclude that the unavailability of the tapes did not significantly prejudice the defendant’s efforts to suppress the identification testimony. Similarly, defense counsel extensively challenged Branham’s credibility at trial. It is unclear how the police broadcast tapes, which contained principally the description and pursuit of the perpetrators of the crime, would have served to discredit the credibility of Branham. In the circumstances of this case, there was no prejudicial inaccessibility to disclosable matter that requires us to find the trial court erred in refusing to strike the testimony.

There is no error.

In this opinion the other judges concurred.

       The following exchange took place:
      “The Court: Did you recognize [the witness’] name when the introductions were made to you?
      “Mr. Toney: No, I didn’t.
      “The Court: Did you know him personally?
      “Mr. Toney: No, I don’t. Not really personally. He has been at my sister’s house sometimes. I know him that way but—
      “The Court: You are not friends yourself.
      “Mr. Toney: No.
      “The Court: Does the fact that you know of him through your sister — is your sister older?
      “Mr. Toney: Yes.
      “The Court: Does that prevent you in any way from listening to the evidence fairly and impartially the way we asked you before?
      “Mr. Toney: No, it doesn’t.
      “The Court: It doesn’t change your position at all?
      “Mr. Toney: No.
      “The Court: You are not going to bend one way or the other in terms of the state of the defendant because of Todd Branham?
      “Mr. Toney: No.
      “The Court: Thank you very much. That is all that I have.”

       Practice Book § 887 provides in pertinent part: “Upon motion of a defendant, the judicial authority may declare a mistrial at any time during the trial if there occurs during the trial an error or legal defect in the proceedings, or any conduct inside or outside the courtroom which results in substantial and irreparable prejudice to the defendant’s case. . . .”

       In his brief, the defendant argues that the court’s failure to allow defense counsel to question Toney after the disclosure of his acquaintance with the state’s witness constituted reversible error. Since this claim was not distinctly raised by the defendant at trial, we do not consider it here. See Practice Book § 4185. “The requirement that the claim be raised ‘distinctly’ means that it must be ‘so stated as to bring to the attention of the court the precise matter on which its decision is being asked.’ ” (Emphasis added.) State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986). The defendant’s claim in his brief that the court refused to allow him to question Toney at the in camera proceedings is belied by the record. He made no such request at that time. Although the defendant subsequently raised this issue in his motion for a new trial, he has not claimed as error the trial court’s denial of his motion for a new trial.

       The defendant was sentenced to serve consecutive terms on the convictions of robbery in the second degree, and larceny in the second degree. The double jeopardy clause of the United States constitution protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932): “ ‘ “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . ” State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). As robbery in the second degree, and larceny in the second degree, have mutually independent elements, the defendant’s double jeopardy allegation is meritless.

       Practice Book § 755, entitled “Failure to Comply with Order,” provides: “If the prosecuting authority elects not to comply with an order of the judicial authority to deliver to the defendant any statement of a witness who has testified or such portion thereof as the judicial authority may direct, the judicial authority shall strike from the record the testimony of the witness, and the trial shall proceed unless the judicial authority, in his discretion, upon motion of the defendant, determines that the interests of justice require that a mistrial be declared.”

       The erased tape in this case was one containing twenty-four hours of police broadcasts for the day the crime was committed. In contrast, the missing material in State v. Mullings, 202 Conn. 1, 6, 519 A.2d 58 (1987), State v. Milum, 197 Conn. 602, 614, 500 A.2d 555 (1985), and State v. Shaw, 185 Conn. 372, 385, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982), were statements by witnesses tape recorded by the police. The foreseeability that production of individual witness statements would be required in the event of trial is far greater than in the case of a twenty-four hour police broadcast tape. The foreseeability of a need for the missing tape in the event of a trial is a factor in determining the state’s culpability in failing to comply with the disclosure provisions of the Practice Book. See State v. Myers, 193 Conn. 457, 468, 479 A.2d 199 (1984).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    White Oak Corporation v. Department of Consumer Protection
    (5542)
    Düpont, C. J., Spallone and Bieluch, Js.
    Submitted on briefs June 1
    decision released September 8, 1987

      Joseph I. Lieberman, attorney general, and Michael A. Arcari and Robert M. Langer, assistant attorneys general, filed a brief for the appellant (defendant).

      Mark A. Rosenblum and Robert L. Hirtle, Jr., filed a brief for the appellee (plaintiff).
   Spallone, J.

The defendant is appealing from the judgment of the trial court sustaining the plaintiffs administrative appeal.

The plaintiff, White Oak Corporation, had contracted with the city of Stamford to perform certain construction work for the city in the downtown area. Under the terms of the contract, the plaintiff was to expand existing intersections, create new intersections and install or improve traffic signals at these intersections. In order for the plaintiff to accomplish the last of these tasks, electrical conduits were laid by the plaintiffs crew of general laborers. These laborers were not licensed by the Connecticut Examining Board for Electrical Work (board), nor did they have any electrical expertise.

On January 8, 1982, the defendant department of consumer protection filed a complaint with the board alleging that the plaintiff was in violation of General Statutes §§ 20-334 and 20-337 by having its agents or employees perform electrical work without having a certificate, license or registration to do so.

On February 19,1982, the board held an administrative hearing, pursuant to General Statutes, chapter 54 (the Uniform Administrative Procedure Act), for the purpose of determining whether the plaintiff was in violation of the aforementioned statutes. On May 14,1982, at the conclusion of such hearing, the board found for the defendant and thereupon ordered the plaintiff to immediately and permanently discontinue its unlawful practice of performing electrical work within the state of Connecticut without using properly licensed personnel.

In early June, 1982, the plaintiff duly appealed the board’s decision to the Superior Court. As in the proceedings before the board, the plaintiff argued that its activities fell within the scope of General Statutes § 20-340 (l), and it was therefore exempt from the licensing provision of chapter 393 of the General Statutes. The trial court, in construing § 20-340, agreed with the plaintiff and sustained the appeal. The defendant now appeals from the Superior Court’s judgment, claiming only that the trial court incorrectly construed § 20-340 (1). We agree.

In reaching its decision that the plaintiff was exempt from licensing, the trial court first compared the language of § 20-340 (1) to that of § 20-340 (3). The court found that if the definitional phrase “persons employed by” contained in subsection (1) were interpreted to mean “employees,” then subsection (3), which specifies “employees,” would be made superfluous. Because such a result is disfavored under traditional rules of statutory construction; Peck v. Jacquemin, 196 Conn. 53, 66, 491 A.2d 1043 (1985); the trial court concluded that the words “persons employed by” must be defined to encompass some group other than “employees.” The court then accepted the plaintiffs argument that, as an independent contractor, the plaintiff was not an employee of the city of Stamford, yet because it was being “employed by” the city to perform the needed construction work, it necessarily fell within the scope of § 20-340 (1).

We find the reasoning of the trial court to be erroneous in several respects. First, we conclude that the trial court misconstrued the relevant exemptions contained in § 20-340. Whereas the exemption contained in § 20-340 (1) applies to “persons employed by any federal, state or municipal agency.” (Emphasis added.) The exemption contained in § 20-340 (3) applies to “employees of any municipal corporation." (Emphasis added.) Because the entities serving as employers in these two subsections are not identical, the trial court’s focus on who is to be employed was misplaced. In other words, if subsection (1) is interpreted to state that “employees of any federal, state or municipal agency” are exempt from licensing, that construction has no effect on the natural reading of subsection (3) exempting “employees of any municipal corporation.”

We also find error in the trial court’s determination that an independent contractor can be exempted from licensing pursuant to § 20-340. It is axiomatic that contractors or independent contractors are not employees of the party for whom they are performing specific work under a specific agreement. The legal incidents of the relationships between an employer and an employee or independent contractor are well established. Lassen v. Stamford Transit Co., 102 Conn. 76, 79-82, 128 A. 117 (1925). “In Alexander v. R.A. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 [1912], we adopted the definition that ‘[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.’ This definition has been amplified in subsequent cases but at no time has the basic principle been altered. See Francis v. Franklin Cafeteria, Inc., 123 Conn. 320, 324, 195 A. 198 [1937]. . . . ‘The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.’ Beaverdale Memorial Park, Inc. v. Danaher, 127 Conn. 175, 179, 15 A.2d 17 [1940]; see Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 628, 173 A.2d 497 [1961]; Bourgeois v. Cacciapuoti, 138 Conn. 317, 320-21, 84 A.2d 122 [1951]; Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 524, 28 A. 32 [1893].” Darling v. Burrone Bros., Inc., 162 Conn. 187, 195-96, 292 A.2d 912 (1972); see also Spring v. Constantino, 168 Conn. 563, 573-74, 362 A.2d 871 (1975). There seems to be no dispute that the plaintiff was, in fact, a contractor and not an employee.

In addition, if we were to accept the plaintiffs argument that, even as an independent contractor, he was employed by the city, the purpose of the statutory licensing requirements would be undermined. When construing a legislative act, it is incumbent on us to consider “its history, its language, the purpose it is designed to serve and the circumstances surrounding its enactment.” Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972).

Prior to 1965, occupational licensing of various trades in Connecticut was done by municipal ordinances promulgated under local law. See Tenth Connecticut Biennial Report, Legislative Council (1962) p. 85. A study included in that report indicated a need for uniform licensing laws; see id., p. 79; to which the General Assembly responded by enacting Public Acts 1965, No. 493 (now codified in General Statutes, chapter 393). At the time of that enactment, only three licensing exemptions were provided.

In 1967, an additional exemption was provided for “employees of any contractor while said contractor is performing work for or subject to inspection by any federal, state or municipal agency or corporation other than a municipal building department, or any public service company.” Public Acts 1967, No. 789, § 12. This modification was clearly intended to create an exemption where theretofore none had existed, and, by its terms, would have provided an exemption for the plaintiff in this case. This exemption, however, was repealed in 1975. See Public Acts 1975, No. 75-464.

The fact that there was at one time an express licensing exemption for the employees of contractors working for a municipal agency or corporation, coupled with the fact that this exemption was retracted more than ten years ago, leads to the inescapable conclusion that the legislature did not intend § 20-340 (1) to provide an exemption for independent contractors.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to render judgment dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       The electrical conduits were two and three inch steel pipes, designed to house the new electrical wiring for the traffic light system. The laborers would dig the needed ditches, lay the pipes in batteries of two or four, encase them in concrete, and then backfill the ditches. At the time of installation, the conduits did not contain any wiring, although the laborers would insert pullstrings in the conduits which enabled the wiring to be installed at a later time. That portion of the job, which entailed the threading of the wiring through the conduits and the final connection of the wires to the system’s power source, was to be performed by an electrical contractor engaged by the plaintiff.

       The board is within and under the authority of the defendant, the department of consumer protection. General Statutes § 21a-6 (3).

       General Statutes § 20-334 provides in pertinent part: “No person shall engage in, practice or offer to perform the work of any occupation covered by this chapter in this state unless he has first obtained a license as provided in section 20-333, or possesses a card of registration from the state apprentice training division or the board and shall be subject to all the regulations established under this chapter for the purpose of governing apprenticeship training or has been issued a license for such particular work under this chapter prior to July 6,1967. The department of consumer protection shall furnish to each qualified applicant a license certifying that the holder thereof is entitled to engage in the work or occupation for which the person has been issued a license under this chapter, and the holder of such license shall carry it on his person while engaging in such work or occupation.”

       General Statutes § 20-337 provides: “Nothing in this chapter shall require that the ownership or control of a business engaged in providing the work or services licensed under the provisions of this chapter be vested in a licensed person, but all the work and services covered by the definitions set forth in section 20-330 shall be performed by persons licensed for such work or occupation under this chapter.”

       General Statutes § 20-330 (2) defines “electrical work” as: “the installation, erection, maintenance, alteration or repair of any wire, cable, conduit, busway, raceway, support, insulator, conductor, appliance, apparatus, fixture or equipment which generates, transforms, transmits or uses electrical energy for light, heat, power or other purposes." (Emphasis added.)

       General Statutes § 20-340 provides in pertinent part: “The provisions of this chapter shall not apply to (1) persons employed by any federal, State or municipal agency ... (3) employees of any municipal corporation specially chartered by the state of Connecticut . . . .”

       That there is indeed a difference between a municipal corporation and an agency (be it state, federal or municipal) merits but a brief discussion. In Connecticut, towns and cities are not considered agencies of the state. Bridgeport v. Agostinelli, 163 Conn. 537, 550, 316 A.2d 371 (1972). These same towns and cities may, however, be specially chartered by the state as municipal corporations. See, e.g., Stamford v. Stamford, 107 Conn. 596, 598, 141 A. 891 (1928). Also, territorial subdivisions within a town or city can be made municipal corporations. Id.; Sachem’s Head Property Owners’ Assn. v. Guilford, 112 Conn. 515, 517-18, 152 A. 877 (1931). An agency, on the other hand, is commonly an administrative division of the governmental entity which is created to carry out a specific function, for example, on a local level, a park department or a school board; or, on a state level, the department of transportation or the department of public works.
      The trial court’s failure to recognize this difference in the entities providing the employment leads to the anomalous result that an employee of a city chartered as a municipal corporation would be exempt from licensing under General Statutes § 20-340, but an employee of that same city’s park department would not be exempt. In interpreting statutory language, we must assume that a reasonable and rational result was intended. Norwich Land Co. v. Public Utilities Commission, 170 Conn. 1, 4, 363 A.2d 1836 (1975). The trial court’s interpretation of § 20-340 (1) does not yield such a result.

       The three exemptions listed in the 1965 act are roughly equivalent to subsections one, two and six of General Statutes § 20-340 as it currently exists. See Public Acts 1965, No. 493, § 9.

       The plaintiff acknowledges in its brief that its activities were monitored by the department of traffic and parking of the city of Stamford.

       The legislative history of the 1975 act which repealed the independent contractor exemption clearly reflects an understanding of what the result of that repeal would be: “[w]hat this bill does effectively is require contractors to be licensed when they work on Federal, State and municipal buildings. Heretofore, they have been exempt from that requirement. What the bill does is require them to do that.” 18 H.R. Proc., Pt. 11,1975 Sess., p. 5277, remarks of Rep. Wilda S. Hamerman.

       The plaintiff informs us in its brief that various claims of error were presented to the trial court in the plaintiff’s appeal from the board’s decision, but that, in light of the trial court’s ruling on General Statutes § 20-340, these additional grounds were not considered. If the plaintiff had wished to present these claims of error to persuade us to grant a new trial rather than order judgment dismissing the plaintiff’s appeal in the event of a successsful appeal by the defendant, the proper procedure would have been to file a preliminary statement of issues pursuant to Practice Book § 4013 (a) (1), and to include arguments on these matters in its brief. Because the plaintiff has failed to do either, we decline to consider the plaintiff’s additional issues. See Huybrechts v. Huybrechts, 4 Conn. App. 319, 320 n.1, 494 A.2d 593 (1985); Travelers Ins. Co. v. Hendrickson, 1 Conn. App. 409, 411 n.3, 472 A.2d 356 (1984).


author: Hull, J.

text:
    State of Connecticut v. George Mention
    (5153)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 2
    decision released September 8, 1987

      Mark Rademacher, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and Juliett Crawford, assistant state’s attorneys, for the appellee (state).
   Hull, J.

After a trial to the court, the defendant was found guilty of creating a public disturbance in violation of General Statutes § SSa-lSla and simple trespass in violation of General Statutes § 53a-110a. The defendant appeals from the judgment, raising five claims of error: (1) that the trial court erred in failing to grant the defendant a trial by jury on both the simple trespass charge and the charge of creating a public disturbance; (2) that the trial court erred in finding the defendant guilty of simple trespass because the statute is unconstitutionally vague and overbroad; (3) that the defendant’s conduct and speech were constitutionally protected; (4) and (5) that there was insufficient evidence to find the defendant guilty of either simple trespass or creating a public disturbance.

The underlying facts are not in dispute. The defendant was standing with his friends in a busy passageway of the food court in the Chapel Square Mall in New Haven. The defendant was asked by a private security guard, employed by the mall, to move along. In response, the defendant verbally attacked the security guard using vile language. He assumed a posture appropriate for a search and arrest and challenged the security guard to arrest him. The director of security testified that the confrontation between the defendant and the security guard was loud enough to attract his attention from some distance. The director of security also asked the defendant to move along. The defendant responded by verbally attacking the director of security and challenging the director to arrest him. The security guard and the director of security testified that a crowd gathered as a result of the defendant’s conduct. The state presented evidence that the defendant had not purchased anything while in the mall. There was no evidence presented, however, that the defendant entered the mall with the intent to trespass or knowledge that he was trespassing.

The defendant’s claims logically fall into two distinct categories: those which address the charge of simple trespass and those which address the charge of creating a public disturbance.

I

The defendant raises three claims of error relating to his conviction for simple trespass: (1) that the Connecticut constitution requires a trial by jury for the crime of simple trespass; (2) that the simple trespass statute, General Statutes § 53a-110a, is repugnant to the state and federal constitutions because it is vague and overbroad; and (3) that there was insufficient evidence for the trial court to find the defendant guilty of simple trespass. In light of our determination on the issue of the sufficiency of evidence, we consider this claim first.

General Statutes § 53a-110a provides in part: “A person is guilty of simple trespass when knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property.” (Emphasis added.) The language of General Statutes § 53a-110a does not create a strict liability crime. The statute requires knowledge on the part of the accused that he is entering without license or privilege.

The defendant in this case was a business invitee. Corcoran v. Jacovino, 161 Conn. 462, 465, 290 A.2d 225 (1971). A business invitee is not required to make a purchase. The mere possibility that he will make a purchase in the future is sufficient to confer the status of business invitee. Corcoran v. Jacovino, supra; Restatement (Second), Torts § 332, comment (3) (f). In the absence of evidence that the defendant knowingly entered as a trespasser there can be no trespass unless the possessor revoked the status of business invitee.

General Statutes § 53a-110a does not provide for revocation of the status of business invitee. The simple trespass statute differs from criminal trespass in the first degree in precisely this respect. General Statutes § 53a-107 (a) (1), the criminal trespass statute, provides that a trespass occurs “after an order to leave or not to enter [is] personally communicated to such person by the owner of the premises or other authorized person.” See State v. Martin, 35 Conn. Sup. 555, 398 A.2d 1197 (1978). Since the defendant was charged with simple trespass, and not with criminal trespass, the state bore the burden of proving that the defendant entered as a knowing trespasser. There must be at least indirect evidence presented on an element of a crime for the finder of fact to determine guilt. State v. Tucker, 181 Conn. 406, 419, 435 A.2d 986 (1980). The record discloses that no evidence was presented at trial that the defendant entered the Chapel Square Mall as a knowing trespasser.

“[T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt ‘does not require a court to “ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt.” ’ (Emphasis in original.) (Citation omitted.) Jackson v. Virginia, [443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)]. ‘Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. [356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972)]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the fact-finder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon [the trier’s] discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Emphasis in original.) Jackson v. Virginia, supra, 319.” State v. Scielzo, 190 Conn. 191, 197-98, 460 A.2d 951 (1983). The state’s failure to present any evidence on the knowing element of the simple trespass statute requires us to find the trial court’s judgment on this count clearly erroneous. Absent sufficient evidence for a finding of guilt on the charge of simple trespass, we are precluded from reaching the defendant’s constitutional claims. Whether General Statutes § 53a-110a is unconstitutionally vague and whether it requires a jury trial cannot be tested in the abstract. Moscone v. Manson, 185 Conn. 124, 134, 440 A.2d 848 (1981). “ ‘[Constitutional issues are not considered unless absolutely necessary to the decision of a case.’ ” State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979), quoting State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 (1974).

II

The defendant raises three claims of error relating to his conviction for creating a public disturbance: (1) that the state constitution requires a trial by jury for creating a public disturbance; (2) that words and conduct for which the defendant was convicted are protected speech under the state and federal constitutions; and (3) that there was insufficient evidence to find the defendant guilty of creating a public disturbance.

The defendant’s first claim of error is that the trial court erred in denying him a jury trial on the charge of creating a public disturbance in violation of General Statutes § 53a-181a. The defendant contends that because he was charged by an information he is entitled to a jury trial. We disagree. This precise issue was addressed in State v. Weisser, 9 Conn. App. 255, 518 A.2d 655, cert. denied, 202 Conn. 803, 519 A.2d 1207 (1986). In Weisser, we noted that the origins of General Statutes § 53a-181a are in the disorderly conduct statute, General Statutes § 53a-182. We concluded that the precedent concerning a jury trial for disorderly conduct therefore controlled our analysis of whether a defendant is entitled to a trial by jury for violating General Statutes § 53a-181a. We held in Weisser, as we do today, that a violation of General Statutes § 53a-181a does not give rise to a right to be tried by a jury.

The defendant’s second claim of error is that his speech and conduct at the time of his arrest were protected under the Connecticut and United States constitutions. We disagree.

General Statutes § 53a-181a (a) (2) provides: “A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... he (2) annoys or interferes with another person by offensive conduct.” The trial court heard evidence that the defendant and his friends were asked by a security guard to move along because they were in the main passageway of the food court in the Chapel Square Mall. All members of the group acquiesced except the defendant.

According to the record, the defendant refused to move and responded "Go ahead, arrest me.” The defendant then spread his arms and legs and leaned against a counter. The defendant began verbally attacking the security guard in a loud voice, saying “Go ahead. Arrest me. You fucking crazy. You can’t fucking arrest me. Go ahead. Try it.” The defendant’s outburst was sufficiently loud to attract the attention of the mall’s security director. The security director also asked the defendant to move along. In response, the defendant told the security director “Lock my fucking ass up, if you want,” and “I don’t give a fuck lock me up.” Evidence was presented that the area of the mall where the confrontation took place was heavily trafficked and that a crowd formed during the confrontation. The defendant claims that he did not challenge the guards or threaten them. He asserts that his speech and conduct are protected by the constitution and are not within the “fighting words” exception created by Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).

Addressing this issue in State v. Beckenbach, 1 Conn. App. 669, 678, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985), we stated: “Fighting words, in constitutional parlance, are those which are inherently inflammatory; Street v. New York, 394 U.S. 576, 592, 89 S. Ct. 1354, 22 L. Ed. 2d 572 (1969); and are directed at a particular individual or group. Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284, reh. denied, 404 U.S. 876, 92 S. Ct. 26, 30 L. Ed. 2d 124 (1971). . . . They are ‘those which touch the raw nerves of one’s sense of dignity, decency, and personality and which, therefore, tend to trigger an immediate violent reaction.’ State v. Hoskins, [35 Conn. Sup. 587, 590, 401 A.2d 619 (1978).]”

In Beckenbach, the defendant made repeated vile verbal attacks on two Danbury police officers and a Western Connecticut State College security guard. The defendant continued his verbal attack on the police officers until he was arrested. In concluding that Beckenbach used “fighting words,” we distinguished the case from State v. Nelson, 38 Conn. Sup. 349, 448 A.2d 214 (1982). In Nelson, the defendant verbally attacked a police officer out of the hearing of any other person. The court found the defendant’s speech was not actionable. The facts of Nelson stand in sharp contrast with the facts in this case. Here, the defendant’s conduct occurred in a main passageway of an enclosed mall with a crowd gathering because of the defendant’s speech and conduct.

More recently we found that an abusive verbal attack on police officers on a public street was not constitutionally protected speech. State v. Weber, 6 Conn. App. 407, 414-15, 505 A.2d 1266 (1986). Neither Beckenbach, supra, nor Weber, supra, articulates a requirement that “fighting words” be accompanied by an actual threat of physical force against a particular person, nor is such a requirement articulated by Chaplinsky v. New Hampshire, supra. To the contrary, “ ‘[rjesort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no questions under that instrument.’ ” Chaplinsky v. New Hampshire, supra, 572, quoting Cantrell v. Connecticut, 310 U.S. 296, 309-310, 60 S. Ct. 900, 84 L. Ed. 213 (1940). The United States Supreme Court has recently affirmed the “fighting words” exception to protected speech in Bose Corporation v. Consumers Union of the United States, 466 U.S. 485, 505, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984).

We find nothing in the record which distinguishes the facts of this case from Weber, supra, and Beckenbach, supra. In both of those cases the defendant verbally attacked particular individuals with vile language. In none of these cases was the defendant provoked or protesting his arrest. Nor was there any political content to the defendants’ speech in these cases. Rather, the facts are strikingly similar in the way the defendants publicly challenged the police by invective. In this case the defendant repeatedly challenged the security guard and the director of security to arrest him. Not only was his language vile but it was accompanied by challenging conduct. The defendant’s speech and conduct fall well within the “fighting words” exception to constitutionally protected speech carved out by Chaplinsky v. New Hampshire, supra.

We find that the absence of error on the issue of protected speech leaves little merit to the defendant’s final claim that there was insufficient evidence for the trial court’s judgment that the defendant was guilty of creating a public disturbance. The defendant’s claim that there was insufficient evidence to convict him for creating a public disturbance depends primarily on his argument that his speech and conduct were constitutionally protected. The defendant contends that his speech and conduct were not sufficiently provocative to constitute “fighting words.” He relies in part on Terminiello v. Chicago, 337 U.S. 1, 69 S. Ct. 894, 93 L. Ed. 1131 (1948); and State v. Anonymous (1976-9), 33 Conn. Sup. 93, 363 A.2d 772 (1976).

In Terminiello v. Chicago, the defendant gave a political speech. The United States Supreme Court found that speech protected because it contributed to the “free debate and free exchange of ideas . . . .” Id., 4. In State v. Anonymous (1976-9), supra, the defendant was selling “communist” propaganda in a parking lot. In the present case there was no political content to the defendant’s speech or his conduct. Rather, the defendant’s speech and conduct served no purpose other than to challenge the security guard and the director of security at the Chapel Square Mall.

Absent constitutional protection, the sole issue is whether the evidence presented at trial brings the defendant’s speech and conduct within the purview of General Statutes § 53a-181a (a) (2). A similar issue was presented in State v. Duhan, 194 Conn. 347, 481 A.2d 48 (1984). In Duhan, the defendant claimed there was insufficient evidence to convict her of disorderly conduct in violation of General Statutes $ 53a-182 (a) (3). The court considered the “time and place at which the noise was made” a critical factor in whether the trier of fact could properly find the defendant guilty of the crime charged. The court determined that the defendant’s “yelling and cursing” in a “busy police station”; id., 360; was sufficient evidence to constitute a basis for the trier’s guilty verdict.

The evidence presented in this case far exceeds the standard articulated by State v. Duhan, supra. The evidence demonstrated that every effort was made by the security officer and the director of security to avoid a confrontation with the defendant by asking him to move along. The defendant refused to move and challenged the security personnel both verbally and by his conduct. This confrontation occurred in a busy public location.

The record supports the trial court’s conclusion that the defendant was “either intentional or reckless,” State v. Duhan, supra, 356, in his conduct as required by General Statutes § 53a-181a. There was no error in the trial court’s judgment that the defendant created a public disturbance as charged.

There is error in part, the judgment of conviction of simple trespass is set aside and the case is remanded with direction to render judgment for the defendant on the simple trespass count.

In this opinion the other judges concurred.

       General Statutes § 53a-181a provides: “(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.
      “(b) Creating a public disturbance shall be an infraction.”

       General Statutes § 53a-110a provides: “(a) A person is guilty of simple trespass when knowing that he is not licensed or privileged to do so, he enters any premises without intent to harm any property.
      “(b) Simple trespass shall be an infraction.”

       The state concedes that there is insufficient evidence upon which to uphold the defendant’s conviction of simple trespass.


text:
    Paul G. Iasiello v. John R. Manson, Commissioner of Correction
    (5184)
    Dupont, C. J., Hull and Daly, Js.
    Argued June 5
    decision released September 8, 1987

      Hubert J. Santos, for the appellant (petitioner).

      James G. Clark, assistant state’s attorney, with whom, on the brief, was Steven M. Sellers, assistant state’s attorney, for the appellee (state).
   Hull, J.

This is an appeal from a decision denying a petition for a writ of habeas corpus in which the petitioner, Paul G. Iasiello, challenged the voluntariness of his guilty pleas to the crimes of kidnapping in the second degree in violation of General Statutes § 53a-94, robbery in the first degree in violation of General Statutes § 53a-134, and possession of weapons in a motor vehicle in violation of General Statutes § 29-38.

The petitioner was arrested on August 13,1976, and charged with kidnapping in the first degree, sexual assault in the first degree, robbery in the first degree and possession of weapons in a motor vehicle. On January 31,1977, the petitioner pleaded guilty to the reduced charges. The trial court, J. Shea, J., canvassed the petitioner’s pleas, found them to be entered voluntarily and intelligently, and entered a finding of guilty to each charge. On February 17,1977, the trial court sentenced the petitioner to the agreed recommended sentence of fifteen to thirty years imprisonment.

The petitioner did not file a direct appeal. He filed two habeas corpus petitions, dated October 30, 1977, and December 6, 1979, prior to the petition which is the subject of this appeal. The former was filed in the judicial district of Hartford-New Britain at Hartford. The latter was filed in the United States district court. The state writ claimed in relevant part that the “[petitioner’s] confinement is illegal in that at the time of the entry of his plea[s] of guilty, the petitioner was under the influence of his medication and did not make a knowing and voluntary plea as required by Article First, section Eight of the Connecticut Constitution, and the Fifth and Fourteenth Amendments [to] the United States Constitution.”

The federal writ claimed in relevant part that the petitioner’s pleas “were made while he was under the influence of drugs which made him incompetent to enter a plea of guilty. Thus, the petitioner argues that his guilty pleas were involuntary and the resulting convictions were in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.”

The state habeas court, Wright, J., denied the petition on October 14,1980, holding that the drugs given to the petitioner did not render his pleas involuntary, and that “the petitioner intelligently pleaded guilty on January 31, 1977.”

The federal magistrate issued a recommended decision denying the second petition on June 8,1982. The decision held that the “state court decision is fairly supported by the record,” and that the petitioner had not met his burden “to establish by a preponderance of the evidence that his guilty plea[s] [were] not voluntarily and intelligently made.” On September 24, 1982, the federal district court approved the recommended decision and denied the petition. The petitioner did not appeal either of the decisions on the prior petitions.

On November 2,1982, the petitioner filed the present petition for a writ of habeas corpus, claiming that “his imprisonment is illegal in that his plea of guilty to the charge for which he is confined was rendered in violation of the Fifth, Sixth and Fourteenth Amendments to the constitution of the United States, Article 1, Sections 8 and 20, of the constitution of the State of Connecticut, and the Rules of Practice of the State of Connecticut.” The petitioner asserts that he was unaware of the “nature of the charges against him”; that the court failed to inform him of the elements of the crimes to which he pleaded guilty.

The respondent denied the allegations of the petition and alleged that the filing of the habeas petition was an abuse of the writ because the petitioner had challenged his guilty pleas on two prior occasions and because the petition was filed almost six years after the guilty pleas.

On November 25,1985, an evidentiary hearing on the petition was held. On March 25,1986, the court denied the petition, stating that “the filing of this petition almost six years after the guilty pleas, coupled with failure to raise this claim in previous petitions constitutes an abuse of habeas corpus.” The court also rejected the petitioner’s claim that his pleas had been entered involuntarily. The petitioner subsequently obtained certification and appealed to this court on June 6, 1986, claiming (1) that the filing of the petition does not constitute an abuse of the writ, (2) that a retrial would not prejudice the state, and (3) that the petitioner’s imprisonment is illegal as his pleas of guilty violated his due process rights. We find no error.

The petitioner’s first claim is that his petition should not have been denied as an abuse of the writ.

Decisions concerning abuse of the writ are addressed to the sound discretion of the trial court. “Theirs is the major responsibility for the just and sound administration of . . . collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits.” Sanders v. United States, 373 U.S. 1, 18, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963). The petitioner bears a heavy burden on appeal to show that the trial court abused its broad discretion. State v. Marra, 195 Conn. 421, 437-48, 489 A.2d 350 (1985). Further, on appeal of a habeas corpus proceeding, the petitioner must show a miscarriage of justice beyond a mere error that might have entitled him to relief on direct appeal. D’Amico v. Manson, 193 Conn. 144, 154-57, 476 A.2d 543 (1984).

Practice Book § 531 provides: “if the petitioner has filed a previous application, it and the action taken thereon shall be summarily described in the pending application. If the previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.” “It is . . . clear that in this context, ‘ground’ must mean a ‘sufficient legal basis for granting the relief sought.’ Sanders v. United States, [supra, 16].” Negron v. Warden, 180 Conn. 153, 158, 429 A.2d 841 (1980). An applicant must, in other words, show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground. Williams v. United States, 731 F.2d 138, 141 (2d Cir. 1984).

In the present case, both prior petitions and the present petition alleged, as a legal ground, that the petitioner’s guilty pleas were involuntary. Only the factual bases of the petitions changed. In Sanders v. United States, supra, the United States Supreme Court addressed a situation analogous to the present one. It stated that “the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different ‘ground’ than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations.” Id.; see also Straight v. Wainwright, 476 U.S. 1132, 106 S. Ct. 2004, 90 L. Ed. 2d 683 (1986); Williams v. United States, supra; Negron v. Warden, supra.

The “ground” advanced by the petitioner is the same in each of the petitions, that his guilty pleas were not voluntarily and intelligently entered, and therefore are void. The petitioner did not present a new “ground” in the present petition.

The habeas court also found that the petitioner “abused the writ” by failing to raise this allegation in a previous petition, and by waiting six years to file this petition. As we have found that the habeas court properly denied the petitioner’s petition because it did not allege “new grounds,” we need not consider alternate grounds of upholding that court.

Nor do we consider the petitioner’s second claim, which also refers to alleged error in the denial of the petition, or his final claim which refers to the merits of the present petition. “Where, as here, a successive . . . petition presents the same ground as an earlier petition which was decided on its merits, the burden is on the petitioner to show that the ends of justice warrant the court’s consideration of the merits of the successive petition.” Williams v. United States, supra, 142. The petitioner has failed to make such a showing. He has presented no compelling explanation of his failure to assert this exact claim of involuntariness in one of his earlier applications. He waited nearly six years to claim that he had not understood the elements of the crimes for which he pleaded guiliy. The record suggests that the petitioner was well aware, prior to entering his pleas, of the crimes with which he was charged and the recommended sentence. In sum, the record persuades us that the petitioner’s present petition presented no new ground for relief, that he failed to present any basis for believing that consideration on the merits is required, and that the trial court did not abuse its discretion in refusing to reach the merits.

There is no error.

In this opinion the other judges concurred.

       The petitioner filed a third petition, not relevant to this case, in 1981, alleging ineffective assistance of trial counsel at the time of his plea. That petition was not submitted as an exhibit in the habeas court and played no part in that court’s decision.


author: Bieluch, J.

text:
    State of Connecticut v. Herman Napoleon
    (5333)
    Borden, Daly and Bieluch, Js.
    Argued June 9
    decision released September 8, 1987

      Peter A. Kelly, for the appellant (defendant).

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, were David P. Gold and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Bieluch, J.

The defendant appeals from his judgment of conviction rendered in accordance with the jury’s verdict of guilty on the following charges: (1) possession of narcotics, to wit, cocaine and heroin, with intent to sell in violation of General Statutes § 21a-277 (a); (2) possession of narcotics, to wit, cocaine and heroin in violation of General Statutes § 21a-279 (a); (3) possession of a controlled substance, to wit, marihuana, with intent to sell in violation of General Statutes § 21a-277 (b); and (4) possession of a controlled substance, to wit, marihuana in violation of General Statutes § 21a-279 (c). He claims that the convictions for possession of narcotics with intent to sell (count one) and possession of narcotics (count two), as well as his convictions for possession of a controlled substance with intent to sell (count three) and possession of a controlled substance (count four), violate his right to be free from double jeopardy under the federal constitution and state law. He also claims that the evidence was insufficient to support his convictions for possession of narcotics with the intent to sell and possession of a controlled substance with intent to sell. Finally, the defendant claims that the trial court erred in excluding evidence of bias harbored by the arresting officer, and in excluding evidence of the probable evasion of service of subpoenas by two persons present at the scene of the arrest. We find error.

The jury could reasonably have found the following facts. On July 2, 1985, at approximately 5:45 p.m., three plainclothes police officers of the New Haven police department encountered a group of men standing near a car parked on Lilac Street. The officers observed the defendant rolling a marihuana cigarette. They stopped their unmarked police vehicle and approached the group of men, whereupon they observed the defendant throwing a brown paper bag into a nearby automobile. The defendant then started to walk away from the group, but was stopped by the approaching officers.

The officers retrieved from the automobile the brown paper bag which contained four manila envelopes containing a plant-like substance and four glassine bags containing a white powder. The defendant was then arrested and searched. On his person, the officers found a small tin “Sucrets” box containing fifteen aluminum foil packets and four glassine bags, all containing a white powder. Upon analysis by the state toxicology laboratory, the plant-like substance was identified as marihuana. Of the fifteen foil packets seized, eight contained cocaine. Six of the eight glassine bags contained heroin. The remaining two glassine bags contained cocaine.

I

Double Jeopardy

The defendant claims that his convictions of possession of narcotics with intent to sell and simple possession of narcotics violated the federal and state prohibitions against double jeopardy. He makes the same claim as to his convictions for possession of a controlled substance with intent to sell and possession of a controlled substance. The state has expressly conceded, in its brief and in oral argument before this court, that the defendant’s claim of double jeopardy violations is correct. In light of our decision in State v. Williams, 12 Conn. App. 225, 530 A.2d 627 (1987), released concurrently with this decision, we need not restate here the application of double jeopardy principles to the crimes of possession of narcotics and possession of narcotics with intent to sell. We note further that the reasoning expressed in State v. Williams, supra, applies equally to the defendant’s convictions for possession of a controlled substance with intent to sell and possession of a controlled substance, to wit, marihuana. Therefore, the defendant’s conviction and sentence for possession of narcotics and his conviction and sentence for possession of a controlled substance, the second and fourth counts, respectively, must be set aside.

While the state concedes that the defendant may not incur multiple punishments for duplicate offenses, it asserts that the finding of a double jeopardy violation does not require vacating the defendant’s underlying multiple convictions as well as the multiple sentences. In brief, the state contends that we should vacate the two double jeopardy sentences, and leave the underlying convictions undisturbed. The state urges this court to adopt the procedural remand fashioned by the Second Circuit Court of Appeals in United States v. Estrada, 751 F.2d 128 (2d Cir. 1984), aff’d in part, 757 F.2d 27 (2d. Cir.), cert. denied, 474 U.S. 830, 106 S. Ct. 97, 88 L. Ed. 2d 79 (1985). In Estrada, the defendant was convicted of ten counts of federal narcotics violations, including conspiracy to possess cocaine with intent to distribute (count two) and conspiracy to import cocaine (count six). Id., 130. He was also convicted of engaging in a continuing criminal enterprise (count one). At sentencing, the district court imposed a sentence of fifteen years on the criminal enterprise conviction, and a sentence of fifteen years on each of the two conspiracy convictions, all three sentences to be served concurrently. The court further declared that “ ‘[t]he sentence imposed on counts two and six [the two conspiracy counts] are merged into the sentence on count one [engaging in a continuing criminal enterprise].’ ” Id., 134.

The Second Circuit Court of Appeals found error in the trial court’s sentencing of the defendant for the conspiracy offenses (counts two and six), which were found to be lesser included offenses in the conviction on the continuing criminal enterprise charge (count one). The court of appeals vacated the sentences on the conspiracy convictions (counts two and six) “and join[ed] and combine[d] the convictions thereon with the conviction on [engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (count one)].” Id., 135. In so holding, the court reasoned that “if the conviction on the lesser offense[s] were vacated, [the] defendant might avoid all punishment if an appellate court later reversed the single conviction on the compound offense but would have upheld the conviction on the lesser count[s].” Id., 134, citing United States v. Gomez, 593 F.2d 210 (3d Cir.), cert. denied, 441 U.S. 948, 99 S. Ct. 2172, 60 L. Ed. 2d 1052 (1979). The court stated that “in the unlikely event that sometime in the future his conviction on [the greater offense] shall be overturned, the sentence imposed on the unaffected conviction on [the lesser offense should be] reinstated. . . . Under this method, the convictions on the lesser counts become combined with that on the compound offense and would not be merged out of existence. This leaves the part of the conviction on the lesser offense unaffected should the compound offense be invalidated as a matter of law. The convictions on the lesser offenses would not exist as separate convictions so long as the [count one] conviction remained in place. Thus, the risk of any collateral consequences that separate convictions may entail would be eliminated and satisfy the concern expressed in [United States v, Rosenthal, 454 F.2d 1252 (2d Cir.), cert. denied, 406 U.S. 931, 92 S. Ct. 1801, 32 L. Ed. 2d 134 (1972), and United States v. Buckley, 586 F.2d 498 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S. Ct. 1792, 60 L. Ed. 2d 242 (1979)], that a defendant not be prejudiced by outstanding separate convictions on lesser included offenses.” (Emphasis in original.) United States v. Estrada, supra, 134-35.

In a concurring opinion, Judge Kearse deemed unclear “what the precise effect is of ‘joining]’ or ‘combinfing]’ the convictions on Counts 2 and 6 ‘with the conviction on Count 1’ . . . [and deemed it] appropriate to vacate the convictions on the two lesser-included offenses, on the condition that the convictions on those offenses would be reinstated in the event that the conviction on the greater offense, Count 1, were ever overturned for reasons not affecting the validity of the convictions on Counts 2 and 6.” (Emphasis added.) Id., 135.

After Estrada, the United States Supreme Court on March 25,1985, decided Ball v. United States, 470 U.S. 856, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985). In Ball, the United States Supreme Court held that the congressional intent and the prohibition against multiple punishments required the vacating of a duplicitous federal criminal conviction, as well as its attendant sentence. In so holding, the court recognized that “[o]ne of the convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense. See Missouri v. Hunter, 459 U.S. 359, 368 [103 S. Ct. 673, 74 L. Ed. 2d 535] (1983).

“The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a further offense. Moreover, the second conviction may be used to impeach the defendant’s credibility and certainly carries the societal stigma accompanying any criminal conviction. . . . Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.” (Emphasis in original; citations omitted.) Ball v. United States, supra, 864-65.

Subsequent to Ball, the Second Circuit Court of Appeals reaffirmed Estrada in United States v. Aiello, 771 F.2d 621 (2d Cir. 1985). In evaluating Estrada in light of Ball, the court recognized the apparent inconsistency between the two cases. The court reconciled the two cases, however, stating that Ball did not consider the possibility of the subsequent successful collateral attack on the count on which judgment was imposed, and by emphasizing that the procedure followed in Estrada, which it again observed in Aiello, achieves the United States Supreme Court's objective in Ball to avoid the punitive consequences that might follow from having dual convictions on a defendant’s record by “ ‘combining’ convictions to ‘eliminate’ the ‘risk of any collateral consequences that separate convictions may entail.’ ” Id., 633-34. Going beyond its remand in Estrada, however, the court in Aiello, after vacating the defendant’s sentences for the conspiracy charges, ruled as follows: “[W]e remand for the purpose of combining the convictions on the lesser counts with that on the greater and for resentencing. We stress that the fact of [the defendant’s] having been convicted on the lesser included charges is to have no collateral effect of any kind unless his conviction on the continuing criminal enterprise charge [the greater offense] should be overturned.” (Emphasis added.) Id., 634.

The approach taken by the Second Circuit has not been without criticism. The concurring opinion in Estrada raised the question as to how the convictions on the lesser offenses would “join” or “combine” with the conviction on the greater offense. United States v. Estrada, supra, 135 (Kearse, J., concurring). In United States v. Stallings, 810 F.2d 973, 975-76 (10th Cir. 1987) the court characterized Aiello, as within the minority of cases which hold that duplicitous convictions need not be vacated, stating that “a majority of the circuits has required vacation of convictions and sentences of the lesser included conspiracy offense.”

The appellate courts of Connecticut have uniformly vacated both the conviction and sentence to remedy multiple punishments for a single offense. See State v. Rawls, 198 Conn. 111, 502 A.2d 374 (1985); State v. Amaral, 179 Conn. 239, 425 A.2d 1293 (1979); State v. Goldson, 178 Conn. 422, 423 A.2d 114 (1979); State v. Stellato, 10 Conn. App. 447, 523 A.2d 1345 (1987); State v. Kitt, 8 Conn. App. 478, 513 A.2d 731 (1986). We decline the state’s invitation to embark upon the course marked by the Second Circuit Court of Appeals in United States v. Estrada, supra, and United States v. Aiello, supra, especially in light of the benchmark established by the United States Supreme Court in Ball v. United States, supra, and the uniform precedents established by our own Supreme Court and this court in prior cases. See Gibbs v. Mase, 11 Conn. App. 289, 290 n.1, 526 A.2d 7 (1987) (Appellate Court bound by Supreme Court precedent); State v. Thurman, 10 Conn. App. 302, 309 n.5, 523 A.2d 891 (1987); State v. Weisser, 9 Conn. App. 255, 257-58, 518 A.2d 655 (1986), reh. denied, 202 Conn. 803, 519 A.2d 1207 (1987).

The defendant’s convictions on count two, possession of narcotics in violation of General Statutes § 2 la-279 (a), and count four, possession of a controlled substance, to wit, marihuana, in violation of General Statute § 2 la-279 (c), are ordered set aside and a judgment of acquittal is to be rendered on those counts. See State v. Rawls, supra; State v. Amaral, supra; State v. Goldson, supra.

II

Sufficiency of the Evidence

The defendant claims that the evidence was insufficient to establish that the defendant intended to sell the cocaine and marihuana in his possession. “The twofold test for determining the sufficiency of the evidence to justify a conviction is well established. We first view all of the evidence in the light most favorable to the verdict. We then determine whether a jury could have reasonably concluded, from that evidence and all the reasonable inferences which it yields, that the defendant was guilty beyond a reasonable doubt. State v. DiStefano, 7 Conn. App. 726, 731, 510 A.2d 995 (1986).” State v. Parent, 8 Conn. App. 469, 472-73, 513 A.2d 725 (1986).

In his challenge to the sufficiency of the evidence, the defendant relies upon Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610, reh. denied, 397 U.S. 958, 90 S. Ct. 939, 25 L. Ed. 2d 144 (1970), which acknowledges that bare possession is an insufficient predicate for a finding that the defendant was dispensing or distributing narcotics. Id., 423-24. He also asserts that the facts of this case fall far below the quantum of evidence heretofor recognized as sufficient to allow the jury to draw an inference of intent to sell narcotics or marihuana. See, e.g., State v. Amaral, supra (defendant possessed a weapon and drug testing equipment); State v. Williams, 169 Conn. 322, 363 A.2d 72 (1975) (defendant possessed forty-five bags of heroin); State v. Avila, 166 Conn. 569, 353 A.2d 776 (1974) (defendant possessed 112 grams of 85 percent pure cocaine). The defendant also relies upon what he characterizes as the small quantity of drugs found in his possession, namely: 8.1 grams (.27 ounce) of marihuana; 1.12 grams (.03 ounce) of heroin; and 3.54 grams (.12 ounce) of cocaine.

Proof of a defendant’s intent generally takes the form of circumstantial evidence, from which the jury is free to draw such inferences which are logical and reasonable. See State v. Whelan, 200 Conn. 743, 757, 513 A.2d 86, cert. denied, 749 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986); State v. Rodgers, 198 Conn. 53, 57, 502 A.2d 360 (1985).

From the evidence presented at trial, we hold that the jury’s finding of the defendant’s intent to sell narcotics and marihuana was reasonable and logical. There was testimony that the area where the defendant was arrested was á primary area for drug trafficking. The bag possessed by the defendant contained four manila envelopes, each containing approximately two grams of marihuana. Marihuana packaged in such quantity is referred to in street parlance as a “nickel bag,” a common unit for retail sale of marihuana. The defendant also possessed eight foil packets and two glassine bags of cocaine, as well as six glassine bags of heroin. The arresting police officers testified that the glassine bags and tin foil packets are commonly used to package narcotics for sale. In short, the defendant was arrested in an area known for the illegal sale of narcotics and controlled substances, carrying twenty-seven small “retail” packages containing heroin, cocaine and marihuana. The circumstantial evidence that these packages were intended for retail sale by the defendant was ■ sufficient, and we hold that such a finding by the jury was not unreasonable or illogical. In so holding, we note that “ ‘[i]t is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving circumstantial evidence.’ ” State v. Sinclair, 197 Conn. 574, 576-77, 500 A.2d 539 (1985).

Ill

Evidentiary Rulings

The defendant claims that the trial court erred in prohibiting the defendant’s counsel from questioning one of the arresting officers concerning his prior experience and practice as a police officer. Likewise, the defendant claims error in the court’s refusal to allow testimony concerning his efforts to procure the testimony of two of the persons who were present at the scene of the arrest. The relevant facts underlying these claims are as follows.

As the arresting officers approached the defendant, they observed him throwing a brown paper bag into a nearby vehicle. After retrieving the bag from the car, Officer Green allowed the driver of the vehicle to leave the scene. Upon cross-examination of Green, the defendant’s counsel asked the following question: “Can you think of any other cases, Officer Green, where you found a bag of suspected narcotics on the seat of a vehicle and you have allowed the driver of the vehicle to leave the scene?” The state’s attorney objected to the question on the ground of relevance. The objection was sustained and the defendant’s exception noted.

The trial court is empowered with wide discretion to rule on questions of relevancy. State v. Franko, 199 Conn. 481, 486, 508 A.2d 22 (1986); State v. Parker, 197 Conn. 595, 601, 500 A.2d 551 (1985). An appellate court will not disturb a trial court’s ruling on the relevancy of evidence, unless a clear abuse of discretion is shown. State v. Parker, supra. The defendant argues that the question was relevant to his claim that Green bore a personal animosity against the defendant. While cross-examination relating to bias or prejudice against a party is a matter of right and may not be unduly restricted; State v. Vitale, 197 Conn. 396, 402, 497 A.2d 956 (1985); State v. Lubesky, 195 Conn. 475, 481-83, 488 A.2d 1239 (1985); the circumstances surrounding the defendant’s arrest support the court’s conclusion here that the decision to allow the driver of the vehicle to leave the scene was not sufficiently relevant to the defendant’s claim of bias or prejudice to warrant its admission into evidence. There was no evidence presented to implicate the driver of the vehicle in any crime. The bag was not first seen in the car from which it was retrieved. The officers merely saw the defendant throw the brown paper bag into the car. Green’s decision to allow the driver to leave may well have been prompted by the absence of any evidence demonstrating that the driver willingly received the package from the defendant. Furthermore, the defendant was not prevented from presenting to the jury probative evidence of Green’s bias or prejudice against the defendant. The defendant was allowed to question Green as to whether he knew the defendant, whether he harbored any animosity toward him, and whether he was aware of a disciplinary complaint filed against him by the defendant’s mother. Upon review of the entire cross-examination, we conclude that the defendant was not deprived of the right to inquire as to the officer’s bias, prejudice or motive and that the trial court did not abuse its discretion in sustaining the objection to the defendant’s question. See State v. Parker, supra, 601; State v. Lubesky, supra, 482; State v. Wilson, 188 Conn. 715, 721, 453 A.2d 765 (1982).

The defendant further argues that the court erred in prohibiting testimony of a deputy sheriff concerning his efforts to subpoena two people who were at the scene of the crime. The state objected to this testimony as irrelevant.

Pursuant to an offer of proof, the deputy sheriff testified outside the presence of the jury that he attempted to serve a subpoena on Darnell Barnes. His address was listed on the subpoena as “407-470 Dixwell Avenue, New Haven, Connecticut.” The deputy sheriff testified that he went to both addresses at dinnertime, but was unable to locate Barnes. He questioned people in the area, but no one knew Barnes.

The deputy sheriff also testified that he attempted to serve a subpoena on Errol Worthy. The subpoena indicated that Worthy lived on the second floor of 247 Newhall Street, New Haven. The deputy sheriff testified that he went to the address twice on the day prior to his testimony and found the name Worthy on the second floor doorbell. Both times no one answered the door. He inquired of persons in the area as to the whereabouts of Worthy, but they stated that they did not know Errol Worthy.

The defendant claimed that this testimony was relevant and should be placed before the jury to warrant the inference that Barnes and Worthy did not want to be located. The state argued that the deputy sheriff made only one attempt to locate Barnes at each of two addresses, and two attempts on the same day to locate Worthy. The court ruled that the testimony was speculative, remote and without any appreciable probative value, and sustained the state’s objection. On the basis of the defendant’s offer of proof, we cannot find that the court abused its discretion in excluding this evidence as irrelevant. See State v. Parker, supra.

There is error in part, the judgment as to count two, possession of narcotics in violation of General Statutes § 21a-279 (a), and count four, possession of a controlled substance in violation of General Statutes § 21a-279 (c), is set aside and the case is remanded with direction to render a judgment of acquittal on counts two and four only.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) 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 marihuana, 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 each subsequent 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.”

       “[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL SANCTIONS, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       “[General Statutes] Sec. 21a-277. (Formerly Sec. 19-480). penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING. . . . (b) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marihuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       “[General Statutes] See. 21a-279. (Formerly See. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL SANCTIONS. . . . (c) Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, may be fined not more than one thousand dollars, or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense may be imprisoned not more than five years, or fined not more than three thousand dollars or be both fined and imprisoned.”

       Marihuana is a controlled substance. General Statutes §§ 21a-240 (29) and 21a-242 (a) (C) (15).

       Following resentencing pursuant to the remand in United States v. Aiello, 771 F.2d 621 (2d Cir. 1985), the defendants in that case filed a motion for a new trial which was treated by the district court as an application for a writ of habeas corpus. The application was denied and the defendants appealed to the Second Circuit Court of Appeals. United States v. Aiello, 814 F.2d 109 (2d Cir. 1987). In its decision on appeal of the habeas corpus petition, the court noted that “[u]pon remand, the district court ultimately vacated the conspiracy convictions, thereby effectively combining them with the § 848 conviction [for the greater offense of continuing a criminal enterprise], and increased the sentence for the § 848 conviction from 35 to 45 years.” Id., 115.

       There was no evidence presented at trial establishing the purity of the narcotics seized.