text:
    Central Bank v. Colonial Romanelli Associates et al.
    (13346)
    O’Connell, IIeiman and Spear, Js.

      Argued April 25
    decision released August 1, 1995

      Richard P. Weinstein, for the áppellants (named defendant et al.).

      Robert E. Byron, with whom were Ealy Bennett and, on the brief, John J. Graubard, for the appellee (substitute plaintiff).
   O’Connell, J.

The defendants Colonial Romanelli Associates and Philip S. Will appeal from the judgment rendered for the plaintiff after a trial to the court. They claim that the trial court (1) improperly awarded interest where the note provided for a variable interest rate based on a failed index, (2) improperly admitted evidence concerning the amount of the debt and the computation of interest, and (3) improperly admitted testimony derived from computer records without a proper foundation. We do not discuss an additional claim pertaining to a late charge because it has been conceded by the plaintiff. We reverse the judgment and remand the case to the trial court for further proceedings.

On February 23, 1990, the defendants Colonial Romanelli Associates, Richard Suisman and Mark Gerrety signed a $700,000 note payable to First Central Bank (Central). The defendants Suisman and Gerrety, together with the defendants George Ritter and Philip S. Will, endorsed the note. When the defendants defaulted in payment, Central brought this action in two counts. In the first count, Central sought payment of the note and in the second count sought recon-veyance of real estate allegedly fraudulently conveyed by the defendant Philip S. Will to his wife, the defendant Karen P. Will.

On October 18,1991, Central was declared insolvent. The Federal Deposit Insurance Corporation (FDIC) was appointed receiver and was later substituted as the party plaintiff in this action. After a hearing in damages held on January 18,1994, the trial court rendered judgment for the plaintiff for $982,612.32, representing $700,000 principal, $246,009.51 interest, $35,102.81 late charge and $1500 attorney’s fees and court costs. The issues concerning the defendants Suisman, Gerrety and Ritter have been resolved, and they are no longer parties to this appeal.

No judgment had been rendered on the second count at the time that this appeal was taken. Accordingly, Colonial and Philip S. Will are appealing only the first count, which constitutes a final judgment for purposes of appeal. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). Additional facts are included in our analysis of individual claims.

I

The defendants claim that the trial court improperly-awarded interest based on a failed index. The note provided that interest thereon would run at a rate of 13/4 percent over Central’s prime rate. The note also provided that “the interest rate would be adjusted as and when Central’s prime rate changes and would be calculated on the basis of a 360 day year adjusted daily.”

When Central became insolvent in October, 1991, the index governing the interest rate of this note ceased to exist. The burden was on the FDIC, as successor to Central, to prove what rate it used to compute the interest charges and that the rate was reasonable.

When a variable interest rate is based on the rate of a failed institution, the trial court must determine whether the substitute rate is reasonable by examining the documents and testimony offered by the plaintiff. See Federal Deposit Ins. Corp. v. Blanton, 918 F.2d 524, 532 (5th Cir. 1990); Federal Deposit Ins. Corp. v. La Rambla Shopping Center, 791 F.2d 215, 223 (1st Cir. 1986); Federal Deposit Ins. Corp. v. Cage, 810 F. Sup. 745, 747 (S.D. Miss. 1993).

In Mechanics & Farmers Savings Bank, FSB v. Delco Development Co., 232 Conn. 594, 597-98, 656 A.2d 1034 (1995), the original bank had failed and, as in the present case, the FDIC took over as receiver and substitute plaintiff. The trial court took evidence and concluded that the interest rate of Chase Manhattan Bank of Connecticut, successor to the failed bank, was a reasonable substitute index. In the present case, the FDIC used a rate 13/4 percent above Central’s prime rate on April 1,1991, the date of default, but did not present any evidence concerning the reasonableness of this rate. Therefore, the matter must be remanded for a new trial.

In its brief, the FDIC also argues that (1) because no defense or claim of recoupment was interposed, the FDIC as holder of a negotiable instrument is entitled to judgment as a matter of law and (2) if the default interest rate did not continue after Central failed, the interest rate becomes the judgment rate. This brief, however, was filed prior to our Supreme Court’s decision in Mechanics & Farmers Savings Bank, FSB v. Delco Development Co., supra, 232 Conn. 597, which is now controlling on the issue of determining a variable interest rate when the index has failed.

II

Although the first claim is dispositive of the appeal, the second and third issues both involve evidentiary questions that may arise on retrial. Both issues implicate the use of computer records.

The defendants complain that evidence of the amount of the debt should not have been admitted because (1) it lacked a proper foundation and (2) it was hearsay. The FDIC had the burden of establishing the date of default and the principal and interest due. Ralph Edwards, a credit specialist with FDIC, was offered by the plaintiff as a witness through whom the plaintiff attempted to introduce evidence of the debt.

Edwards based his testimony on Central’s and FDIC’s computer records. He had no personal knowledge of the reliability of the computer system but merely accessed it and used the information obtained therefrom. The computer records were not admitted into evidence. Because Edwards was not responsible for entering the data in the computer and had no opinion concerning the accuracy of the records or how they were created, his testimony lacked a proper foundation and should not have been admitted. State v. Barnes, 232 Conn. 740, 747, 657 A.2d 611 (1995); see 1 C. McCormick, Evidence (4th Ed. 1992) § 10, pp. 37-40.

Moreover, because Edwards was not testifying from his personal knowledge, his testimony was hearsay and should not have been admitted. Hearsay is defined as a statement made out-of-court that is offered to establish the truth of the facts contained in the statement. State v. Jaynes, 35 Conn. App. 541, 548, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1995). Edwards was testifying from computer records created and controlled by others. Because the computer records were not in evidence, testimony about their contents, by a witness without personal knowledge of the contents, is hearsay. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 488-89, 586 A.2d 1157 (1991).

Because the contents of the computer records were at issue, the records themselves were the best evidence of the amount of the debt and the interest calculation. Accordingly, they should have been admitted into evidence before Edwards was permitted to testify concerning their contents. See Coelm v. Imperato, 23 Conn. App. 146, 150, 579 A.2d 573, cert. denied, 216 Conn. 823, 581 A.2d 1054 (1990). Without the admission of the records into evidence, Edward’s testimony, as to their content, was hearsay and should not have been admitted.

The defendant cites American Oil Co. v. Valenti, 179 Conn. 349, 357, 426 A.2d 305 (1979), on the issue of the admissibility of computer information as business records pursuant to General Statutes § 52-180. A discussion of that case is unwarranted here, however, because the computer records were not offered or admitted into evidence; “an appellant is entitled to review of claims on appeal only on the basis that that evidence was admitted in the trial court.” State v. Casey, 30 Conn. App. 346, 351, 620 A.2d 201 (1993), rev’d on other grounds, 228 Conn. 487, 636 A.2d 840 (1994).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       We refer to Colonial and Will as the defendants in this opinion.

       The Supreme Court opinion incorporates the trial court opinion reported at 43 Conn. Sup. 408, 422-23, 656 A.2d 1075 (1995).


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. John Fitzgerald Wideman
    (13207)
    Foti, Heiman and Hennessy, Js.
    Argued April 17
    decision released August 1, 1995

      Barry A. Butler, assistant public defender, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Benedict, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered by the court, following his guilty plea entered pursuant to the Alford doctrine, of attempted robbery in the first degree in violation of General Statutes §§ 53a-49 and 53a-134 (a) (2). The defendant’s motion to withdraw his plea of guilty was denied by the court. The dispositive issue on appeal is whether the trial court improperly failed to apprise the defendant of an essential element of the offense during the plea canvass and before accepting the plea of guilty, or failed to ensure that the defendant fully understood the nature of the crime of attempted robbery in the first degree. We affirm the judgment of the trial court.

The record discloses the following pertinent facts, as recited by the state’s attorney in court and in the presence of the defendant prior to his plea. An associate of the defendant, Eric Amato, had been storing a quantity of cocaine at an apartment in West Haven. The residents of that apartment were Hope Vaughn and Joanne Bailey. On October 18,1990, Vaughn stole the cocaine and took it to the apartment of Anthony Young. When Amato discovered that the drugs were missing, he and another person went to Bridgeport where they met Bailey. She denied any knowledge of the theft. Amato and the others were later joined by the defendant. They returned to West Haven that evening, where they encountered Vaughn. Their attempts to coerce Vaughn into divulging the whereabouts of the drugs were unsuccessful.

The following morning, Amato and Bailey spoke to neighbors in the West Haven apartment, one of whom disclosed that she had observed a black woman placing bags into the trunk of a red Toyota. Amato concluded that Vaughn was the woman and that the car belonged to Young. Later that morning, Amato and the others, including the defendant, took Bailey and Vaughn to the front door of Young’s apartment. The defendant was armed with a pistol. An altercation took place after the door was opened. Two people from inside the apartment were shot and killed by Amato. Bailey was also shot. The men neither entered the apartment nor retrieved the three and one-half pounds of cocaine that was later found there.

The defendant was convicted on his plea of guilty to the crime of attempted robbery in the first degree. Prior to sentencing, the defendant’s counsel argued during a hearing on a motion to withdraw his plea that there had not been substantial compliance with Practice Book § 711 (l). The defendant argued that the trial court had failed to include the definition of robbery when it addressed him. Specifically, the court failed to include, as part of that definition, the use or threat of the immediate use of force on another. In denying the defendant’s motion, the trial court acknowledged that it had not referred to robbery as larceny by force. It had indicated when addressing the defendant, however, that robbery in the first degree occurs when, in the course of the commission of the crime of robbery, “someone is armed with a deadly weapon.” The court opined that this implies that some force was used, thereby distinguishing robbery in the first degree from a mere larceny. The court also noted that the state’s recitation of the factual background of the crime was sufficient to notify the defendant of the crime charged.

On appeal, the defendant claims that the trial court incorrectly failed to apprise him of an essential element of the crime charged. The defendant claims that the trial court, by accepting the guilty plea, failed in its constitutional obligation and in its obligation under Practice Book § 711. We are not persuaded.

“It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.” State v. Ramos, 23 Conn. App. 1, 3, 579 A.2d 560 (1990). A plea of guilty cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978). These principles are in accord with Practice Book § 711 (1) et seq.

“The fact that an allegation of noncompliance with [a rule of practice] may sometimes have constitutional dimensions does not . . . establish the existence of such a constitutional nexus in every case.” State v. Jarrett, 218 Conn. 766, 776, 591 A.2d 1225 (1991). Precise compliance with the provisions of Practice Book §§711 and 712, which govern the canvassing of a defendant’s guilty pleas, is not constitutionally required. State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Our Supreme Court has indicated that “[w]here there has been a substantial compliance with [§ 711], such that none of the defendant’s constitutionally protected rights has been infringed upon, the failure to comply with each and every requirement of [§ 711] does not automatically require the vacating of the defendant’s plea. . . .” (Citations omitted; internal quotation marks omitted.) State v. Lopez, 197 Conn. 337, 346, 497 A.2d 390 (1985). Moreover, due process does not mandate a factual basis inquiry. Paulsen v. Manson, 203 Conn. 484, 491, 525 A.2d 1315 (1987). The Paulsen court quoted approvingly from Willbright v. Smith, 745 F.2d 779, 780 (2d Cir. 1984), in which the court stated that “[t]he voluntariness of a plea of guilty . . . should be determined by considering all of the relevant circumstances.”

We must consider all of the relevant circumstances to determine whether the defendant had a full understanding of the nature of the charge to which he was entering a plea. For that plea to have been knowing and intelligent, the record must show that constitutional standards were satisfied and that there was substantial compliance with Practice Book § 711. State v. Gilnite, 202 Conn. 369, 383, 521 A.2d 547 (1987).

It is the duty of the trial court to comply with the provisions of Practice Book § 711. State v. Elijah, 34 Conn. App. 595, 597, 642 A.2d 735, cert. denied, 231 Conn. 907, 648 A.2d 157 (1994). Substantial compliance with Practice Book § 711 does not require that the trial court read the statute to the defendant if there are other reasons to believe that the defendant understands the statute. State v. Badgett, 220 Conn. 6, 14, 595 A.2d 851 (1991). The court could reasonably have concluded that the defendant understood the statute on the bases of what the court had informed him and the factual recitation of the nature of the crime placed in the record. The court informed the defendant, in part, that “in the commission of said robbery, someone is armed with a deadly weapon” and that “if a robbery is going to be committed and one of the participants had a deadly weapon, it’s a robbery one, subsection two.” While this does not specifically inform the defendant that § 53a-133 requires the use of physical force on another or the threatened immediate use of physical force on another, the concept of being armed with a deadly weapon, by its very nature, was sufficient to convey to the defendant that the crime of robbery in the first degree included the use or threatened use of physical force on another. Also, the state’s recitation of the underlying facts, in the defendant’s presence, conveyed to the defendant the nature of the crime. The state’s recitation explicitly described a scenario in which several men, including the defendant, who was armed with a pistol, went to an apartment to retrieve drugs. One of the men shot and killed two occupants of the apartment. This recitation provided the defendant with “real notice” of the nature of the crime. See State v. Eason, 192 Conn. 37, 43, 470 A.2d 688 (1984).

The defendant asks that we consider our Supreme Court’s decision in State v. Childree, 189 Conn. 114, 454 A.2d 1274 (1983), as determinative that the court’s omission was not inconsequential in that it was a failure to apprise the defendant of an element critical to the offense. In Childree, the defendant claimed that the trial court failed to apprise him of an element critical to the offense of first degree larceny, i.e., a threat of physical injury to some person in the future. Id., 118. After a comparison of the trial court’s definition of first degree larceny with the statutory definition, the court concluded that the critical element of “future harm” was not made clear to the defendant. As stated earlier, we conclude that, in this case, the critical elements of the crime of robbery in the first degree were conveyed to the defendant.

We conclude, on the basis of our review of the record, that the defendant understood the nature of the crime and was aware of the elements of the crime of attempted robbery in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       During jury selection, a plea agreement was fashioned and, on November 5,1993, the defendant pleaded guilty to a substitute information alleging one count of attempted robbery in the first degree. He had been charged with two counts of capital felony murder in violation of General Statutes § 53a-54b (8), two counts of murder in violation of General Statutes § 53a-54c and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). Under this doctrine, the defendant pleads guilty and acknowledges that the state has enough evidence to convict him without expressly acknowledging his participation in the criminal activity.

       General Statutes § 53a-134 provides in pertinent part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of the immediate flight therefrom, he or another participant in the crime . . . (2) is armed with a deadly weapon
      General Statutes § 53a-133 provides in pertinent part: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person . . . .”

       The defendant’s motion to withdraw his plea was made “pursuant to the fifth and fourteenth amendments to the constitution of the United States; article one, section eight of the constitution of the state of Connecticut; Connecticut Practice Book § 721 et seq.; and Connecticut General Statutes sec. 54-1.”

       The defendant was sentenced to a term of ten years to run consecutive to a sentence that the defendant was then serving.

       Practice Book § 711 provides in relevant part: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands: (1) The nature of the charge to which the plea is offered . . . .”

       The transcript of the trial court proceeding reveals the following colloquy:
      “The Court: Now a robbery is a larceny. Taking someone else’s property without their permission with the intent to permanently deprive the person of that property and in the course of the commission of said robbery, someone is armed with a deadly weapon. Do you understand that Mr. Wideman?
      “The Defendant: Yes, sir.
      “The Court: Okay. And . . . a deadly weapon is defined as follows. Any weapon whether loaded or unloaded from which a shot may be discharged or a switch blade knife . . . . So if a robbery is going to be committed and one of the participants has a deadly weapon, it’s a robbery one, subsection two.”

       See footnote 6.

       The state concedes, and we agree, that the record does not support a presumption that defense counsel explained the elements of the crime to the defendant. See State v. Childree, 189 Conn. 114, 123, 454 A.2d 1274 (1983).


author: Heiman, J.

text:
    State of Connecticut v. John Nazario
    (13934)
    Lavery, Heiman and Hennessy, Js.
    Argued May 30
    decision released August 1, 1995

      Martin M. Rizzi, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a conditional plea of nolo contendere, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court improperly denied his motion to suppress evidence seized from his residence pursuant to a search warrant. We affirm the judgment of the trial court.

The facts necessary to a proper resolution of this appeal are as follows. On June 4, 1993, New Britain police submitted an application for a warrant to a judge of the Superior Court to search the defendant’s residence at 534 East Main Street, first floor, in New Britain. The items sought under the warrant included cocaine, related drug paraphernalia and other items commonly used in drug related transactions. The application included a four page, eighteen paragraph affidavit of New Britain police officers Jack Wenz and William Durkin, members of a special services unit charged with the investigation of narcotics violations in New Britain.

The following facts from the affidavit are relevant to the disposition of this appeal. In July, 1992, the special services unit was involved in an ongoing investigation of drug related activity taking place at the Las Vegas Cafe in New Britain. As a result of this investigation, the New Britain police arrested Efrain Domin-quez, also known to the police as Danny. The police determined that Dominquez was a supplier of drugs to street level drug dealers in New Britain. Dominquez was charged with various drug related offenses and subsequently released on bond.

In March, 1993, the police received information from a confidential and reliable informant that a Hispanic male known as Danny was “back in business” supplying drugs to street level drug dealers in New Britain. The informant thereafter examined a photographic array of eight Hispanic males, which included a photograph of Dominquez. The informant identified the photograph of Dominquez as that of the person he knew as Danny.

The informant also revealed the following information. A Hispanic male named John helped Dominquez deliver drugs. John was light skinned, about twenty years old, five feet eight inches tall and 175 pounds, with a goatee. Both men were responsible for drug sales at the Las Vegas Cafe and My Cousins Cafe in New Britain. The men had lived together at 67-69 Pleasant Street in New Britain, but John recently moved to an unknown location. Dominquez drove a blue Cadillac, as well as other vehicles. John drove a grey Toyota bearing Massachusetts registration plate 766EFS, and his telephone number was 225-7125. Upon learning this, Wenz contacted the Southern New England Telephone Company. The telephone company revealed that John’s telephone number, 225-7125, was registered to the defendant at 71 Smalley Street, first floor, in New Britain.

During the first week of April, 1993, members of the special services unit asked the informant to make a controlled cocaine buy from the defendant. The informant agreed and the police provided him with money to make the purchase. The informant called 225-7125 and spoke with the defendant, who arranged a time and place to meet the informant to sell him cocaine.

Wenz and the informant then proceeded to the prearranged meeting place and waited for the defendant to arrive. Meanwhile, Durkin was stationed in the area of 71 Smalley Street, and another officer was in the area of 67-69 Pleasant Street. Shortly after the informant called the defendant, Durkin observed the grey Toyota exit the driveway of 71 Smalley Street, driven by a Hispanic male who was the vehicle’s only occupant. Durkin followed the Toyota to Pleasant Street, where it stopped at 67-69. The driver of the Toyota exited the vehicle, went to the rear of the house and returned to the car a few minutes later. He then left Pleasant Street and went to the location where Wenz and the informant were waiting. The driver pulled up to the informant, made a quick transaction and left. The police followed the Toyota back to 71 Smalley Street, where it pulled into the rear yard. The informant then met with Wenz and gave him a quantity of white powder purchased from the driver of the Toyota. The informant also identified the driver of the Toyota as the defendant. The white powder was then field-tested and the result was positive for the presence of cocaine.

Later in April, 1993, as part of the ongoing drug investigation, police stopped the grey Toyota to identify the operator. The police identified the driver as the defendant. The vehicle was registered to the defendant’s girlfriend, Maria Mendez.

During the months of April and May, 1993, the police conducted periodic surveillance of 71 Smalley Street and 67-69 Pleasant Street. During this time, the police observed the grey Toyota and the blue Cadillac make trips between both locations. The police also saw the grey Toyota make trips to various locations in the city, meeting people at pay telephones and on the street for only a few minutes. At these times, the police observed “quick transactions” and then observed the grey Toyota return to either Pleasant Street or Smalley Street. At the end of May, Wenz observed that the grey Toyota was “always going to and from the rear of 534 East Main Street with the entrance to that location being on the Noble Street side.” This location is one block from 71 Smalley Street.

At the end of May, 1993, the special services unit asked the confidential informant to make another controlled cocaine buy from the defendant. The informant told the police that the defendant was still using telephone number 225-7125 for arranging drug deliveries. The informant called the defendant at that number, asked to purchase some cocaine, and arranged a time and place to meet with the defendant. Wenz and the informant then went to the prearranged location, while Durkin set up surveillance in the Smalley Street and Noble Street area. Shortly after the informant called the defendant, the grey Toyota exited Noble Street. Wenz observed the Toyota approach the prearranged location and pull up to the informant. Wenz identified the person operating the Toyota as the defendant. The informant and the defendant engaged in a quick transaction and the defendant then drove away in the Toyota. The police followed the car to 67-69 Pleasant Street. After a few minutes, the car left Pleasant Street and went to the rear of 534 East Main Street. The informant met with Wenz and handed him a quantity of white powder purchased from the defendant. The white powder was field-tested and the result was positive for the presence of cocaine.

Wenz subsequently contacted the Southern New England Telephone Company and learned that 225-7125 was still listed in the name of the defendant, but that the location of the number was now 534 East Main Street, first floor, in New Britain. According to the affidavit, Wenz then “conducted additional surveillance of 534 East Main St. and on several occasions did observe the grey Toyota make trips to and from 67-69 Pleasant St. plus to and from various locations in the city, making what appeared to be quick transactions. This would indicate that [Dominquez] and [the defendant] are using their respective apartments at 67-69 Pleasant St., 2nd fl. and 534 East Main St., 1st fl. for carrying on their drug activity.”

On the basis of the information contained in the affidavit, a judge of the Superior Court issued the search warrant. The New Britain police executed the warrant and seized cocaine, heroin, marijuana, a triple beam scale, packaging materials, drug paraphernalia, a gun, cash and other items from the defendant’s residence.

The defendant was arrested and charged with various offenses in connection with his drug related activity. He entered a plea of not guilty and filed a motion to suppress the evidence seized from his residence pursuant to the execution of the search warrant. The motion to suppress was denied by the trial court. The defendant withdrew his plea of not guilty and entered a conditional plea of nolo contendere to a substitute information charging him in a single count with possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a), reserving his right to appeal from the trial court’s denial of his motion to suppress.

The defendant claims that the trial court should have granted his motion to suppress the evidence seized from his residence because the affidavit in support of the warrant application failed to establish probable cause. We disagree.

“Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity; and (2) there is probable cause to believe that the items named will be found in the place to be searched.” State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991); State v. Torres, 36 Conn. App. 488, 495-96, 651 A.2d 1327, cert. denied, 232 Conn. 912, 654 A.2d 357 (1995).

“The determination of whether probable cause exists to issue a search warrant under article first, § 7 of our state constitution, and under the fourth amendment to the federal constitution, is made pursuant to a ‘totality of the circumstances’ test. State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991); Illinois v. Gates, 462 U.S. 213, 231-32, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Under this test, in determining the existence of probable cause to search, the issuing judge must make a ‘practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the “veracity” and the “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991).” State v. Rodriguez, 223 Conn. 127, 134-35, 613 A.2d 211 (1992).

This court, in reviewing the validity of a warrant, “must determine that the affidavit presented a substantial factual basis upon which the [issuing judge] could conclude that probable cause existed.” State v. Barton, supra, 219 Conn. 552; State v. Johnson, supra, 219 Conn. 565; State v. Ives, 37 Conn. App. 40, 44, 654 A.2d 789 (1995). In making this determination, we are confined to the “four comers” of the warrant. State v. Vincent, 229 Conn. 164, 168, 640 A.2d 94 (1994). Thus, “we may consider only the information that was actually before the issuing judge at the time he or she signed the warrant, and the reasonable inferences to be drawn therefrom. . . . We view that information, however, in the light most favorable to the issuing judge’s determination of probable cause . . . .” (Internal quotation marks omitted.) State v. Ives, supra, 44-45, quoting State v. Duntz, 223 Conn. 207, 216, 613 A.2d 224 (1992).

From the allegations set forth in the affidavit, and the reasonable inferences to be drawn therefrom, there was a substantial factual basis on which the issuing judge could conclude that probable cause existed that the items sought under the search warrant would be found at the defendant’s residence.

First, the affidavit established that the defendant was involved in illegal drug dealing. The defendant was associated with Dominquez, a known drug dealer, with whom he formerly resided at 67-69 Pleasant Street. The defendant was also responsible for drug dealing at the Las Vegas Cafe and My Cousins Cafe. Of most importance is that the police observed the defendant sell cocaine to the informant in two controlled drug buys.

Second, the affidavit established that the defendant consistently used the same telephone number and automobile to carry out his drug related activities from his place of residence. The defendant’s telephone number at his former address, 71 Smalley Street, and at his new address, 534 East Main Street, was 225-7125. The informant used this telephone number to contact the defendant at his residence to purchase cocaine on two occasions. On both of these occasions, the defendant used the grey Toyota to consummate the transaction rapidly. Furthermore, the defendant’s connection to the grey Toyota was not tenuous. The police identified the defendant as the operator of the Toyota during a traffic stop, and further discovered that the vehicle belonged to the defendant’s girlfriend. The police also continuously observed the vehicle at the defendant’s place of residence.

Finally, the affidavit established that the defendant was engaged in a recurring pattern of behavior that intimately linked his drug related activities to his place of residence. On the occasions that the informant purchased cocaine from the defendant, the defendant would do the following: (1) receive the telephone call at his residence at 225-7125; (2) depart from his residence or the immediate area in the grey Toyota; (3) arrive at the prearranged location to consummate the sale quickly; and (4) return to his residence in the grey Toyota. The police observed this pattern of activity when the defendant lived at 71 Smalley Street and at 534 East Main Street, the site of the search at issue. In addition to observing the controlled drug buys take place in this manner, the police conducted careful and ongoing surveillance of the defendant’s residence at 534 East Main Street. As a result of this investigation, the police observed the defendant repeat the pattern of activity as that described above. In these instances the defendant made quick transactions at various locations in the city, traveling to and from 534 East Main Street in the process. This indicated that the defendant was using his residence at 534 East Main Street in connection with his drug related activity. The defendant’s residence “was not merely a ‘criminal forum of convenience’ but rather a ‘secure operational base.’ ” State v. Johnson, supra, 219 Conn. 568.

“We have recognized that the business of dealing in illegal drugs often involves a course of conduct that continues over a long period of time and is usually considered to be a regenerating activity.” State v. Torres, supra, 36 Conn. App. 498. “When a suspect has been carrying on an illegal activity for an extended period of time without detection, it is reasonable to conclude that evidence of his activity will be secreted in his home.” State v. Vallas, 16 Conn. App. 245, 262, 547 A.2d 903 (1988), aff'd sub nom. State v. Calash, 212 Conn. 485, 563 A.2d 660 (1989). “ ‘In the case of drug dealers, evidence is likely to be found where the dealers live.’ ” State v. Castano, 25 Conn. App. 99, 104, 592 A.2d 977 (1991), quoting United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir. 1986). “Actual observations of illegal activity or contraband in the premises to be searched, however, are not required to establish probable cause.” (Emphasis added.) State v. Castano, supra, 103.

We conclude that the trial court correctly found that there was a substantial factual basis to support the issuing magistrate’s finding of probable cause that the defendant’s residence contained the items sought under the search warrant, and thus acted properly in denying the defendant’s motion to suppress. “The nexus between the items sought and the place to be searched may be inferred from the type of crime, the nature of the evidence, the extent of an opportunity for concealment and normal inferences as to where a criminal would likely hide the item[s].” State v. Rodriguez, 27 Conn. App. 307, 313, 606 A.2d 22 (1992).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure, motion to suppress statements and evidence based on the involuntariness of a statement or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.” See also Practice Book § 4003.

       General Statutes § 21a-277 (a) provides in pertinent part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possess 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 . . . [shall be punished].”

       The application also sought authorization to search the defendant’s person and a 1978 Toyota bearing Massachusetts registration plate 766EFS.

       The briefs of the parties refer to Dominquez as “Dominguez.” We use the spelling of his name as it appears in the affidavit.

       The informant had assisted the New Britain police in the past with other investigations, resulting in the arrest and conviction of at least three people for drug related activity.

       The informant also identified Dominquez’ telephone number and a beeper number that the two men used in their drug transactions.

       The defendant does not dispute that he is “John” referred to in the warrant affidavit. Therefore, we hereinafter refer to “the defendant” where the affidavit refers to John.

       In arguing that no probable cause existed in this case, the defendant principally relies on our Supreme Court’s decision in State v. DeChamplain, 179 Conn. 522, 427 A.2d 1338 (1980). The defendant posits that the facts in the affidavit in the present case mirror the facts in the DeChamplain affidavit, and that, therefore, as a matter of law, we are required to reverse the judgment of the trial court. We disagree. The facts of this case are substantially different from the facts of DeChamplain, and, therefore, the defendant’s reliance on that case is misplaced.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


author: Dupont, C. J.

text:
    State of Connecticut v. Shawn Robinson
    (11350)
    Dupont, C. J., and O’Connell and Landau, Js.

      Argued January 11
    decision released June 29, 1995

      Deborah L. DeHart, with whom, on the brief, were William H. Narwold and Lynn A. Addington, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and David J. Strollo, assistant state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of two counts of the crime of assault in the second degree in violation of General Statutes § 53a-60. He claims that he was denied a right to a fair trial by the trial court’s words and conduct, and that the state’s use of two peremptory challenges violated his right to equal protection under the law as explicated in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We conclude that the defendant was given a fair trial but remand this matter for a hearing as to the exercise of one of the peremptory challenges.

I

Fair Trial

The defendant claims that he was deprived of a fair trial because the trial court improperly (1) made reference to the fact that security in the courtroom was a result of the war in the Middle East, (2) laughed at him, and (3) allowed him to be shackled during the course of the trial. The defendant asserts that the trial court’s comments and the high level of security in the courtroom, when taken as a'whole, prejudiced him and denied him the right to a fair trial. If the defendant were to prevail on this claim, he would be entitled to a new trial; State v. Couture, 194 Conn. 530, 564-65, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); and we would not need to reach the defendant’s claim that the use of peremptory challenges violated his right to equal protection.

The defendant argues that the trial court made improper reference to the war in the Middle East in that part of its charge concerning the heightened security in the courtroom. The defendant claims that he was prejudiced by this comment because the jury was aware of the fact that he was a Muslim.

In its charge to the jury, the trial court stated, “In addition, I wanted to say something about the security in the courtroom. You know, we’re a very security conscious society. Right now, because of the war, there’s security all over. Mr. Robinson has made no secret of the fact that he is an inmate in a correctional institution. There are certain policies and procedures followed in cases like this and I don’t want you to draw any kind of an inference that anything you saw related to any security measures taken in this courtroom or any intimation of the guilt or nonguilt of Mr. Robinson. It has no bearing whatsoever on the ultimate issue here that you’re going to be deciding.”

The defendant objected to the trial court’s reference to the war. Thereafter, the trial court called the jury back and stated, “Counsel has asked me to correct one false impression that I might have left with you. I want to be absolutely certain that you understand that any reference I make to security or the war has absolutely nothing to do with this case. Nothing whatsoever. I was just speaking generally. And I want to just impress on you that you were not to associate any security measures that have been taken in this courtroom with any indication of the guilt or nonguilt of the defendant. It has absolutely nothing to do with it whatsoever and obviously any measures that we have taken here have nothing whatsoever to do with the war. I just wanted to correct that.”

The trial court’s comments did not prejudice the defendant. First, we cannot assume that the jury knew the defendant’s religious affiliation. The defendant has not provided a reference to any part of the transcript to show that the jury knew of the defendant’s religion. The defendant references his own comment to the trial court, outside the presence of the jury, that the jury knew he was a Muslim, and his own comment during a hearing on a postverdict motion.

Further, even if the jury was aware of the defendant’s religion, the trial court’s statements indicate that it referenced the security precautions taken because of the war in the Middle East simply as an example of society’s general security consciousness. It is unlikely that any juror would understand the court’s general comment to be related to the religious affiliation of the defendant.

Next, the defendant claims that he was prejudiced because the trial court allegedly laughed at him. The defendant discusses this issue in only one sentence of his brief and his only reference to the transcript is from the hearing on a postverdict motion where the trial court stated, “I do remember one occasion when everybody in this room laughed and I’m sorry to say that I joined in.” It is impossible from this statement to know the reason for the laughter, and to assess the merits of the defendant’s claim.

The defendant next asserts that the high level of security in the courtroom throughout the trial served to create a prejudicial atmosphere, thereby depriving him of a fair trial. Prior to voir dire, the trial court conducted a hearing to determine whether the defendant should be restrained during trial. The first witness to testify was a sheriff who recalled an incident that occurred while the defendant was in a holding cell at the courthouse, wearing handcuffs and leg irons, with a gag in his mouth. The defendant had smashed his head through a window, picked up a piece of broken glass and threatened sheriffs with the glass.

The trial court also admitted into evidence the transcript of summary contempt proceedings from a previous mistrial of this case where the trial court had described incidents that occurred during that trial. The court stated that the “[defendant Mr. Shawn Robinson in the process of the voir dire examination interrupted the voir dire examination with contemptuous comments to the court. He specifically indicated ‘Hey man, I got to go to the bathroom’ and refused to participate further in the voir dire. He refused to return to the courtroom after a recess was granted. When he was escorted back into the courtroom by the sheriffs he refused to sit down when directed by the court. He was shouting in a loud and belligerent manner. He refused to stop shouting when directed to do so by the court. He refused to stop talking when directed to do so by the court. ... It was reported to the court that there was an incident at the jail in which three sheriffs were injured by this defendant and he was unable to be brought to the court.” The state then brought to the attention of the court other alleged incidents of violent behavior by the defendant, including the fact that, in this case, the defendant was accused of assaulting two correction officers while incarcerated at the John R. Manson youth institution.

The trial court then decided that the defendant should remain shackled with his hands loosely cuffed to his belly irons, but without close handcuffs. During the trial, the court modified its original ruling by ordering that the defendant’s writing hand be free and, then, ordering that both hands be free. The court had a barrier constructed to conceal the physical restraints from the jurors. Correction officers in charge of the defendant sat or stood near him in the courtroom.

The defendant claims that his right to a fair trial was violated by these security measures. “As a general proposition, a criminal defendant has the right to appear in court free from physical restraints. . . . Grounded in the common law, this right evolved in order to preserve the presumption favoring a criminal defendant’s innocence, while eliminating any detrimental effects to the defendant that could result if he were physically restrained in the courtroom. . . . Nonetheless, a defendant’s right to appear before the jury unfettered is not absolute. ... A trial court may employ a reasonable means of restraint upon a defendant if, exercising its broad discretion in such matters, the court finds that restraints are reasonably necessary under the circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991).

“In reviewing the defendant’s claims concerning shackling, our standard of review is whether the trial court abused its sound discretion in acting as it did. . . . The trial court’s discretion on the issue of shackling is‘broad.’ . . . It is for the trial court to consider all the circumstances to accommodate fairly the defendant’s right to the indicia of innocence before the jury as well as the competing rights of participants in the courtroom and society at large.” (Citations omitted.) State v. Woolcock, 201 Conn. 605, 615, 518 A.2d 1377 (1986).

Here, the trial court did not abuse its discretion by ordering the security measures and causing the defendant to be restrained. The defendant had exhibited a history of violent behavior. This violent behavior had been directed toward sheriffs and the court and had occurred in the courthouse. Further, the trial court attempted to conceal the restraints from the sight of the jury and adjusted the restraints after personally observing the defendant in the courtroom.

Finally, the defendant asserts that the cumulative, effect of the trial court’s comments and the heightened security deprived him of a fair trial. Our previous conclusions concerning the court’s comments and security measures lead us to reject this claim. “ ‘We decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.’ ” State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993).

We conclude that the defendant was not denied his right to a fair trial.

II

Equal Protection

Two peremptory challenges of the state are at stake. One of them involves a question of first impression, namely, whether a request by a defendant for a Bat-son hearing is timely when not made immediately following the voir dire of the venireperson who the defendant claims was improperly challenged.

The defendant is black. Of the first thirty-eight venirepersons called for jury selection, three were black. One of those three was excused by the court for hardship, and the other two, Lisa Spruill and Melvin Perry, were excused by the state through the use of peremptory challenges.

Spruill was the second person voir dired and Perry the thirty-eighth person voir dired. The defendant did not object on the basis of Batson v. Kentucky, supra, 476 U.S. 79, immediately after the state used a peremptory challenge to excuse Spruill, but the defendant did object on that basis as to Spruill and Perry immediately after the state excused Perry, and moved that the entire venire panel be dismissed. When the defendant made his Batson claim, he asked the state to put on the record its reasons for excusing both Perry and Spruill.

The state asserted that it excused Perry for two reasons. First, the state felt that a comment made by Perry, “it takes two to fight,” indicated that Perry would be lenient about fights and that Perry thought that no one was solely at fault for a fight. Second, the state was concerned with the fact that Perry had a fourth grade education, whereas the other jurors that had been selected had at least high school educations. The state was asked by the court if it wanted to put anything on the record as to Spruill, and the state declined, stating that the defendant had not made a Batson claim as to her immediately following her voir dire. The court did not require the state to put on the record its reasons for excusing Spruill.

When the defendant requested a ruling on his motion to dismiss the venire panel because of the exclusion of both Perry and Spruill, the court stated that it was premature to rule because not enough had developed for it to be able to find any prejudice. The defendant continued to argue his claim on statistical grounds, raising the fact that the state had struck “a hundred percent of the people in the cognizable [racial] group,” and that the state had, therefore, excused a disproportionate number of black venirepersons.

The court found that the state’s reasons for the challenge of Perry were not pretexts and inferentially that the defendant had not satisfied his burden of proof that the striking of Perry was racially motivated. The court made no ruling as to Spruill because the defendant had not objected when she was excused. In short, no Bat-son hearing was held as to Spruill.

The court never specifically ruled on the defendant’s motion to dismiss the entire venire panel but implicitly denied it because it found the peremptory challenge as to Perry was not racially motivated and that no Bat-son hearing was needed as to the peremptory challenge of Spruill because the defendant’s claim as to her was untimely. After the trial court had concluded, the defendant filed a motion for a new trial based on his Batson claims. The court denied that motion.

The defendant argues that the trial court violated his state and federal constitutional rights to equal protection by failing to find that the peremptory challenge of Perry was racially motivated and by failing to hold a Batson hearing as to the peremptory challenge of Spruill. He seeks a new trial.

The Connecticut constitution “grants [litigants] a right to challenge prospective jurors peremptorily. Conn. Const., art. I, § 19. Nevertheless, Connecticut’s . . . jury selection procedures . . . must comply with the strictures of the federal constitution. . . . Thus, while Connecticut litigants still have a state constitutional right to use peremptory challenges, the extent of that use is now limited by the equal protection clause of the federal constitution . . . .” (Citations omitted.) Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 225, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

In Batson v. Kentucky, supra, 476 U.S. 89, the United States Supreme Court held that “the Equal Protection Clause forbids [a] prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” See State v. Hinton, 227 Conn. 301, 323, 630 A.2d 593 (1993). “[T]he striking of even one juror on the basis of race violates the equal protection clause . . . .” State v. Gonzalez, 206 Conn. 391, 400, 538 A.2d 210 (1988).

The first step in a Batson hearing requires the defendant to establish a prima facie case of discrimination. The necessity of establishing a prima facie case, however, has been obviated in Connecticut. A defendant, who is a member of a cognizable racial group is entitled to a hearing based on the principles of Batson if he requests one and if the prosecutor exercised a peremptory challenge to excuse a member of the defendant’s race from the jury panel. State v. Holloway, 209 Conn. 636, 646 n.4, 553 A.2d 166, cert. denied, 490 U.S. 1071, 129 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).

In the second step of Batson, the burden shifts to the prosecutor to articulate a race neutral explanation for striking the juror in question. Batson v. Kentucky, supra, 476 U.S. 97. “A neutral explanation . . . means an explanation based on something other than the race of the juror. . . . Unless a discriminatory-intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). The prosecutor’s explanation need not rise to the level necessary to justify exercise of a challenge for cause. Batson v. Kentucky, supra, 97. The prosecutor may not, however, rebut the defendant’s prima facie case by stating merely that the peremptory challenge was exercised on the assumption or on intuitive judgment that the prospective juror would have been partial to the defendant because of shared race. Id. Moreover, “[i]f a prosecutor articulates a basis for a peremptory challenge that results in the disproportionate exclusion of members of a certain race, the trial judge may consider that fact as evidence that the prosecutor’s stated reason constitutes a pretext for racial discrimination.” Hernandez v. New York, supra, 363. The exercise of a peremptory challenge, however, will not be held unconstitutional solely because it results in a racially disproportionate jury. Id., 361.

In the third step of Batson, after the state has articulated a race-neutral reason, the defendant, in order to prevail, must show by a preponderance of the evidence that the prosecutor exercised a peremptory challenge discriminatorily. State v. Gonzalez, 206 Conn. 391, 399-400, 538 A.2d 210 (1988). The type of evidence that is relevant to a showing of discrimination includes, but is not limited to, the following examples: “(1) The reasons given for the challenge were not related to the trial of the case ... (2) the prosecutor failed to question the challenged juror or only questioned him or her in a perfunctory manner ... (3) prospective jurors of one race were asked a question to elicit a particular response that was not asked of the other jurors . . . (4) persons with the same or similar characteristics but not the same race as the challenged juror were not struck ... (5) the prosecutor advanced an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically . . . and (6) the prosecutor used a disproportionate number of peremptory challenges to exclude members of one race.” (Citations omitted; internal quotation marks omitted.) Id., 399.

The trial court has the obligation of determining whether the defendant has established that the state’s reasons were insufficient or pretextual. This ultimate question is one of intent and is a question of fact that turns on the court’s evaluation of the state’s credibility. State v. Hinton, supra, 227 Conn. 301. The finding of fact by the court is entitled to great deference, and we may not reverse the trial court’s finding as to whether intentional discrimination caused the exercise of the peremptory challenge unless the finding is clearly erroneous. Id.

A defendant may waive his equal protection right to be free of discriminatory peremptory challenges, as well as his right to assert the interest of a prospective juror to participate in the trial. Conversely, he may assert his own right to have, as well as the right of prospective jurors to be part of, a race neutral jury. State v. Patterson, 230 Conn. 385, 392, 645 A.2d 535 (1994).

“[B]y failing to object in a timely manner, the defendant is ordinarily deemed to have waived his equal protection right against racially motivated peremptory challenges under Batson v. Kentucky, supra, 476 U.S. 79. . . . Timely objection serves to avoid prejudicial error by permitting the trial court and the prosecutor to reconsider and perhaps change their courses of conduct while that is still possible. ... In addition, timely objection serves to preserve an adequate record for appeal. ... As the United States Supreme Court has stated, ‘ “[n]o procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right.” ’ ” (Citations omitted.) Id., 392-93; see also State v. Rodriguez, supra, 37 Conn. App. 589.

The determination of whether a Batson objection to a peremptory challenge by the state must be made immediately following the exercise of the challenge or else be waived is an issue of first impression in Connecticut. In State v. Hinton, supra, 227 Conn. 301; State v. Smith, 222 Conn. 1, 608 A.2d 63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed. 2d 293 (1992); State v. Holloway, supra, 209 Conn. 636; State v. Gonzalez, supra, 206 Conn. 399-400; and State v. Rodriguez, supra, 37 Conn. App. 589, the peremptory challenges in question were the subject of & Batson hearing, at the request of the defendant, immediately following the exercise of each challenge by the state. In Patterson, supra, 230 Conn. 385, the defendant never objected, for himself or on behalf of a prospective juror, at any time during the trial and thus was deemed to have waived his right to do so. These cases do not serve as guidance to determine whether the defendant here waived his Batson right because it was not timely made.

The only Connecticut case that even obliquely addresses the issue of whether a Batson claim must be made immediately after the voir dire has been completed or be deemed waived is State v. Wylie, 10 Conn. App. 683, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1154 (1987), where the objection to three peremptory challenges made by the state to three black venirepersons was made after all jurors and one alternate juror had been selected. Without any discussion of timeliness, and without any claim of the state that the objection was untimely, the trial court held that the state’s articulation as to the venirepersons excused was race-neutral. In that case, however, unlike the present case, the trial court required articulations and made findings as to the race-neutral content of the articulation that could be reviewed by us.

There are three times when a defendant may object to a peremptory challenge and request a Batson hearing. One is immediately following the voir dire of the member of the cognizable group who is the subject of the claimed discrimination. Another is when the defendant becomes aware or should have become aware that a prior peremptory challenge was improper, and the third time is at the conclusion of the selection of the jury panel but before the jury is sworn. When a defendant should be required to claim & Batson hearing or have deemed it waived depends on a number of factors, such as the difficulty of applying the requirement, whether there is a constitutional or a statutory right to peremptory challenges and individual voir dire, and whether a defendant is given the benefit of an inference of discrimination without the necessity of showing a prima facie case as soon as a peremptory challenge is used to excuse a member of the particular cognizable group at issue.

Other jurisdictions have held that a Batson claim will be timely if made before the jury is sworn, even if it is made after all the jurors have been selected. Baxter v. United States, 640 A.2d 714 (D.C. App. 1994); Tur-sio v. United States, 634 A.2d 1205 (D.C. App. 1993); Wright v. State, 186 Ga. App. 104, 366 S.E.2d 420 (1988); Stanley v. State, 313 Md. 50, 542 A.2d 1267 (1988). These cases from other jurisdictions are helpful but not determinative because they arise in the federal courts or in states that do not have constitutional and statutorily protected rights to peremptory challenges and to individual voir dires and in states that have not eliminated the necessity of making out a prima facie case before proceeding to the state’s articulation of race-neutral reasons.

The individual voir dire in Connecticut makes it less necessary for a defendant to wait until the end of jury selection before making a Batson claim because the likelihood of the improper use of a peremptory challenge may be known as soon as the voir dire is complete. In jurisdictions where not all venirepersons are individually questioned, with the voir dire being conducted by the court, some jurors may not answer any questions at all, making it impossible to know that a Batson claim exists as each juror is accepted.

The right to an individual voir dire as defined and practiced in Connecticut makes it likely that the time between the first voir dire and the last is not a matter of hours, but of days, weeks or even months. When the time between the choosing of the first and last juror is short, the state can better articulate its race-neutral reasons and the defendant can more easily satisfy his burden of proof as to the discriminatory nature of the peremptory challenge.

The elimination of the necessity of making a prima facie case of discrimination also has an effect on the timeliness of the claim. If there must first be a showing by a defendant of a prima facie case, the second and third steps of a Batson hearing might never be necessary because the lack of discrimination may be apparent if the defendant cannot make out a prima facie case, causing a court to find that the defendant is not entitled to the inference of discrimination. Conversely, the state may realize the lack of strength in the race-neutral articulation it would have made because of the strength of the defendant’s prima facie case and withdraw its peremptory challenge prior to an attempt to articulate its race-neutral reasons which also would make it unnecessary to have a full scale Bat-son hearing. If there need be no showing of a prima facie case, as is true in Connecticut, a defendant is entitled to a Batson hearing by simply asking for one if the challenged venireperson is a member of a cognizable group protected from the use of a discriminatory peremptory challenge, making it easier for a defendant to object to the challenge at an earlier time.

There is certain evidence of discrimination that is, or should be, apparent to a defendant at the time the state uses a peremptory challenge. For example, if the prosecutor fails to question the challenged juror or questions him or her in only a perfunctory manner, defense counsel should recognize this fact at the time the potential juror is being voir dired, and should assert his Batson claim immediately after voir dire of that juror. There are also circumstances, however, in which the defendant may not recognize the possibility of discrimination until the questioning of another prospective juror sometime later in the jury selection process. For example, if the first prospective juror of a minority race is asked a question to elicit a particular response that is not asked of the other venirepersons of other races who are subsequently questioned, or if persons with the same or similar characteristics but not the same race as the challenged juror are not struck, the possible discrimination would not be apparent until the subsequent venirepersons are voir dired and chosen. There is, thus, a lack of empirical data in some instances until a comparison of voir dires can be made by a defendant. Also, until a disproportionate number of peremptory challenges are exercised to excuse members of a minority race, the defendant may not be aware of the discriminatory nature of an earlier peremptory challenge or challenges. The defendant cannot be expected to be clairvoyant in determining whether to seek a Batson hearing if the patterns that might eventually show discrimination have not yet occurred.

Allowing a defendant to seek a, Batson hearing at the time a pattern of possible discrimination has emerged, which necessarily may occur long after the individual voir dire of the juror in question has been completed, creates difficulties. See United States v. Biaggi, 909 F.2d 662 (2d Cir. 1990); Tursio v. United States, supra, 634 A.2d 1210. It may be too late to take corrective measures such as seating the juror who was excused for improper reasons and it may make it difficult for the state to reconstruct honest race-neutral reasons if the challenge occurs long after the excusal. To deem the Batson right waived, however, unless made immediately following voir dire, may make it impossible for defendants to prove by a fair preponderance of the evidence that the state has exercised a peremptory challenge discriminatorily because they will not have the benefit of a comparative review of the voir dires to come. We recognize, therefore, that whatever time we require a defendant to exercise his right to seek & Bat-son hearing or be deemed to have waived it, has a Scylla and Charybdis aspect.

All of the factors as hereinabove discussed are involved in our conclusion that the defendant should have asked for a Batson hearing at that point in the voir dire proceedings when the possibility of purposeful discrimination became or should have become apparent. The point at which that occurred in this case is a question of fact for the trial court to determine. It was not necessary for the defendant to wait until the state exercised its next peremptory challenge after Spruill to excuse another member of the same cognizable group before he could assert a Batson claim. There are instances where the comparative data from subsequent individual voir dires of others who are not members of the same group would make a defendant aware that a peremptory challenge previously made by the state may have been purposeful discrimination.

Here, the defendant raised a Batson claim with regard to the state’s excusal of Spruill at the time that the defendant objected to the state’s challenge of Perry. Earlier comparative data of other voir dires may have made the time ripe for a request for a Batson hearing prior to Perry’s voir dire. At the time of Spruill’s excusal, however, there was no reason apparent on the record before us for the defendant to believe that the excusal was race related, and, therefore, the defendant cannot be deemed to have waived a Batson hearing for his failure to seek a, Batson hearing immediately after her voir dire. Whether a Batson hearing was waived at some point prior to the Perry voir dire is a question of fact for the trial court to determine and depends on the questions that were asked and the answers that were given by other.venirepersons. While we realize that a significant amount of time has passed since the voir dire of Spruill and the voir dires intervening between Spruill and Perry, the parties involved can rely on the transcript, recordings and any notes they have retained to refresh their memories. See Stanley v. State, supra, 313 Md. 50. We cannot review the court’s denial of a hearing without a finding of subsidiary facts by the court that the defendant did or did not waive his right. In the event the court finds the defendant’s request for a Batson hearing was not waived, a Batson hearing must be held.

Although we have concluded that the trial court in this case must determine if a Batson hearing was waived as to Spruill and, if it finds the hearing was not waived, to conduct such a hearing, because of the importance of Batson type hearings, and under our general supervisory powers, we hereby establish the following procedure for future cases. See State v. Holloway, supra, 209 Conn. 645-46.

Because factual patterns will vary from case to case as to when a Batson hearing should have been timely requested, or otherwise be deemed waived, a defendant should preserve his right to a hearing by alerting the trial court and the state when a member of the cognizable group has been peremptorily challenged that a later request for a Batson hearing may be made. This will afford the state, a defendant and the court the opportunity to note the circumstances of the particular voir dire, in case a Batson hearing is requested later, while making it unnecessary actually to hold a hearing at the time. The state will be better able to explain its race-neutral reasons and a defendant will be in a better position, with the comparative knowledge that only the subsequent voir dires can give, to carry the burden of proving purposeful discrimination in the event of a future Batson hearing. The fact that the venireperson is of a particular group can then become a matter of record at the time of the exercise of the peremptory challenge but no hearing need ever be held unless a request for a Batson hearing is made at a later time when a defendant becomes aware that an earlier peremptory challenge may not have been race-neutral. If a defendant, however, should have known of the possible prejudice on the basis of the voir dire of a venireperson of the cognizable group who is struck, that defendant must assert a claim to a Batson hearing immediately following that voir dire or will be deemed to have waived it. If, however, a defendant could not have known of any possible prejudice on the basis of the voir dire, the right to a subsequent Batson hearing will not be waived if that defendant had alerted the court to the possibility immediately following the voir dire.

Because the defendant in this case may have been deprived of a Batson hearing concerning the state’s excusal of Spruill, we must determine the appropriate remedy, in the event that the trial court finds the defendant did not waive a hearing. The defendant argues that he is entitled to a new trial if there should have been a Batson hearing.

The remedy after a trial is over for the failure to grant a Batson hearing is either a remand so that the hearing may be held, or a new trial. In those instances where no Batson hearing was held, the weight of authority provides the remedy of remand so that the state may belatedly give its neutral explanation and the defendant its argument that the state’s explanation is a pretextual mask for discrimination. Wright v. State, supra, 186 Ga. App. 104; People v. Lockhart, 201 Ill. App. 3d 700, 558 N.E.2d 1345 (1990); Stanley v. State, supra, 313 Md. 50. If it is almost certain that the defendant can prove by a fair preponderance of the evidence that there is an improper motive for the peremptory challenge, there is authority for granting a new trial. See Tursio v. United, States, supra, 634 A.2d 121.

The defendant claims that he is entitled to a new trial, not only because the court did not require the state to articulate race-neutral reasons for the peremptory challenge of Spruill, but also because the trial court required him to prove that there had been a systematic exclusion of black venirepersons by the state. Because the striking of even one juror is sufficient for a successful Batson challenge; State v. Gonzalez, supra, 206 Conn. 400; the defendant is not required to establish a systematic exclusion of black venirepersons in order to prevail under Batson. This rule, however, does not preclude the defendant from proving discrimination by showing such a pattern of discrimination by the state.

Here, the defendant was attempting to prove discrimination by establishing that the state had excluded a disproportionate number of black venirepersons, which is one of the factors used to test whether there is discrimination as enunciated in State v. Gonzalez, supra, 206 Conn. 400. This claim will of necessity become a factor in the Batson hearing we have ordered in the event the defendant is entitled to one as to Spruill and need not be addressed here.

We conclude that the remedy for a failure to hold a Batson hearing is a remand to hold such a hearing, rather than a summary grant of a new trial. A remand leaves the judgment of conviction intact until such time as discrimination is in fact shown and preserves the rights of both the state and the defendant, while at the same time conserving judicial resources. A new trial is required when it has been established that a fundamental right has been violated. Here, it is not yet known whether a right has been taken from the defendant or a potential juror.

The defendant also claims that the state dis-criminatorily used a peremptory challenge to excuse Perry. As evidence of this discrimination, the defendant asserts that persons with the same or similar characteristics but not the same race as Perry were not struck.

The defendant refers to other venirepersons, chosen to serve on the jury, who commented on the use of self-defense. “James Mitchell, for example, agreed that an individual has a right to exercise physical force to defend himself under certain circumstances and stated ‘this is America, that’s what it’s all about.’ Similarly, Floyd Brown stated that he would not run from a fight and, if threatened, he would ‘come out on top.’ ” The defendant further notes that, in fact, all of the witnesses questioned on the issue of self-defense agreed that under certain circumstances a person had a right to defend himself.

The defendant’s argument fails, however, because a belief in the right to defend oneself is not the equivalent of the view that it takes two to fight. The concerns that the prosecutor raised as race-neutral reasons for excusing Perry, that Perry might be lenient with fights and that Perry might think that no one was at fault for a fight, would not necessarily apply to those jurors who expressed positive views on self-defense.

The defendant also argues that because the defense elicited most of the testimony concerning the jurors views on self-defense, any race-neutral reasoning based on this issue must be pretextual. It does not matter, however, which party questioned the venireperson on the issue of self-defense. The state is not limited to striking jurors only because of responses to the questions that it asks. Further, the record indicates that the venirepersons were consistently asked by at least one of the parties about their views on self-defense. If it happened to be the defendant who asked the questions, it does not mean that it was not a concern to the state.

The defendant, next, claims that the state’s reasons for excusing Perry must have been pretextual because the state found acceptable jurors who had similar educational and occupational backgrounds as Perry. “For instance, Mr. Floyd Brown had been a truck driver for thirty-one years. Kenneth Pierce worked as a retired railroad worker who worked in the freight yards in New Haven. . . . Michael Hofmeister . . . attended trade school to become a tool maker . . . .”

The defendant fails, however, to indicate that any other member of the jury had less than a high school education. This was the stated concern of the state. Simply because jurors have similar occupations does not mean that they have similar educations.

The defendant also claims that the state’s attorney did not inquire into the education of all of the potential jurors, and, therefore, any race-neutral reason based on the education of the venireperson must have been pretextual. The record, in fact, does not indicate that the state inquired into Perry’s educational background, and we cannot test the finding of the trial court that the state’s explanation concerning Perry’s education was sufficient under Batson. We conclude that the trial court was correct in finding that the defendant did not sustain his burden of proving the exercise of the state’s challenge of Perry was purposeful racial discrimination.

The case is remanded for further proceedings to determine whether the defendant waived his right to a Batson hearing as to Spruill, and, if the court determines that he did not, to hold a Batson hearing. In the event that the trial court finds, after the hearing, that the defendant has not sustained his burden of proving that the challenge was discriminatory, the judgment is affirmed. In the event that the court finds that the defendant has sustained his burden, the judgment of conviction is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant cited to a portion of transcript not provided to this court. We assume that the defendant’s statement made in the hearing on the post-verdict motion is the reference that he intended.

       This is not the transcript reference that the defendant provided in his brief. The page referenced by the defendant does not indicate laughter or any reference to laughter. Again, we are left to assume that the defendant intended to reference the part of the transcript to which we refer.

       Sixty-eight venirepersons were questioned before a jury was selected.

       In order to establish a prima facie case, a defendant must show that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory challenges to excuse members of the defendant’s race from the jury panel, and any other relevant circumstances that raise an inference that the prosecutor used the challenge to exclude on the basis of race. Batson v. Kentucky, supra, 476 U.S. 96; State v. Holloway, 209 Conn. 636, 641, 553 A.2d 166, cert. denied, 490 U.S. 1071,129 S. Ct. 2078, 104 L. Ed. 2d 643 (1989).

       A Batson claim has now been applied to situations involving groups other than cognizable racial groups and other than when the defendant and the venirepersons are members of the same cognizable group. See generally,
        State v. Rodriguez, 37 Conn. App. 589, 658 A.2d 98 (1995). The need to establish a prima facie case, therefore, in these situations is also obviated.

       The United States Supreme Court has made it clear that steps two and three of a Batson hearing, namely the recitation by the state of a race-neutral reason that is facially valid, and the proof by the defendant that the strike was discriminatory cannot be merged. Purkett v. Elem, U.S. , 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995). If a race-neutral reason is given that does not facially deny equal protection, even if it is unpersuasive or even “silly,” the hearing must proceed to step three. Id.

       The constitution of Connecticut, article first, § 19, as amended by amendment four, provides: “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent. In all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. The right to question each juror individually by counsel shall be inviolate.”
      General Statutes § 54-82f provides: “In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

       In future cases, the procedure outlined, infra, will make this determination unnecessary.

       The same questions and answers may also become relevant, in the event a Batson hearing is ordered by the court, to the burden of the defendant to show purposeful discrimination. See State v. Gonzalez, supra, 206 Conn. 399.


author: O’Connell, J.

text:
    State of Connecticut v. Walter Davis
    (13291)
    O’Connell, Speak and Hennessy, Js.

      Argued May 2
    decision released August 1, 1995

      James P. Ginocchio, assistant special public defender, with whom, on the brief, was John Booth, legal intern, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Robert Katz, senior assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, for sale of narcotics in violation of General Statutes § 21a-277 (a) and sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The défend-ant claims that there was insufficient evidence to support either conviction. We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. On April 12, 1993, Officer Richard S. Monroe, Jr., of the Norwalk police department was assigned to surveillance of possible drug activity in the area of Ely Avenue and Lowe Street in South Norwalk, a known drug trafficking area. He was located in an abandoned building 300 to 400 feet from the target area, watching the area through binoculars. Monroe was working with an arrest team of three officers that was waiting in an unmarked car out of sight of the target area.

Some fifteen minutes into the surveillance, Monroe observed the defendant standing in front of a laundromat on Ely Street. The defendant walked back and forth in front of the laundromat, stepping into the laundromat several times, and waved to several passing cars. A white Ford Escort came slowly down Ely Street. The defendant waved to the driver, a woman later identified as Laura James. She pulled into the parking lot adjacent to the laundromat and got out of her car.

James approached the defendant and handed him some currency. Monroe could not see the denomination. The defendant appeared to hand something back to James, but, because the defendant had his back to the officer, Monroe could not see the exchanges, whether one or more items changed hands, or whether the defendant took the item or items from his pocket, his coat or if he already had it in his hand. James put something in her coat pocket, walked back to her car and drove away.

Monroe radioed a description of the car and the direction it was traveling to the arrest team and continued to watch the laundromat. James was out of sight for ten to fifteen seconds before the arrest team apprehended her. She was stopped at a traffic light, holding two “jumbos” of what proved to be cocaine in her right hand, when the officers stopped their car behind hers and approached on foot. James was placed under arrest and given over to uniformed police for processing. She was not taken back to the laundromat to identify the defendant.

Five to ten minutes later, the arrest team arrived at the laundromat. Monroe radioed a description of the defendant to the arrest team, who entered the laundromat. They brought the defendant out and radioed Monroe, who told them that they had the right man.

The arrest team searched the laundromat and found several glassine envelopes of heroin hidden in some empty boxes, but no cocaine. No drugs were found on the defendant’s person. At trial, James denied buying the drugs from the defendant. We will discuss other relevant facts in our analysis.

When we review a challenge to the sufficiency of the evidence, we apply a two step analysis. “We must first review the evidence presented at trial, construing it in a light most favorable to sustaining the jury’s verdict. We then determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Arbelo, 37 Conn. App. 156, 159, 655 A.2d 263 (1995), citing State v. Turner, 24 Conn. App. 264, 267, 587 A.2d 1050, cert. denied, 218 Conn. 910, 591 A.2d 812 (1991).

The first count charges the defendant with sale of a narcotic substance, specifically cocaine. “Sale,” when applied to illegal drug transactions, is a much broader term than the common understanding of an exchange for value. The term includes “any form of delivery [of an illegal drug] which includes barter, exchange or gift . . . .” General Statutes § 21a-240 (50). Here, the state was required to prove beyond a reasonable doubt that the defendant sold, as that term is defined by statute, cocaine to James. State v. Arbelo, supra, 37 Conn. App. 160; State v. Mierez, 24 Conn. App. 543, 551, 590 A.2d 469, cert. denied, 219 Conn. 910, 911, 593 A.2d 136 (1991).

“A jury first draws inferences and makes findings of fact. In doing so, it may draw inferences from the facts it found proved, and it is not required to draw only inferences that are consistent with innocence. State v. Tatum, 194 Conn. 594, 598, 483 A.2d 1087 (1984). In drawing these inferences and finding these facts, however, it may not resort to speculation and conjecture. State v. Mierez, supra, [24 Conn. App.] 554.

“Once the jury has finished drawing inferences and making findings of fact, it must then determine its ultimate conclusion: whether those facts and inferences prove the defendant guilty beyond a reasonable doubt. ‘Proof beyond a reasonable doubt requires that the evidence exclude every reasonable hypothesis of innocence.’ State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994).” State v. Arbelo, supra, 37 Conn. App. 160.

The primary flaw in the state’s case is that it offered no witness who saw drugs pass from the defendant to James. Furthermore, James testified that she bought the cocaine from a bald Hispanic man wearing eyeglasses. She was asked to come down from the witness stand and to approach the defendant; she denied that he was the man who had sold her the drugs. The defendant is an African-American. There were Hispanic men in the laundromat, but none was detained or questioned.

The state’s case was undermined further when no cocaine was found on the defendant’s person or in the laundromat, nor did the defendant attempt to flee or resist when the officers entered the laundromat.

Further weakening the state’s case was testimony by Monroe that he saw two other men, whom he knew to be drug dealers, leave the laundromat and head in the same direction as James when she left the laundromat parking lot shortly thereafter. A member of the arrest team testified that a drug sale on the street can take as little as ten seconds. James was out of sight for at least that long. That officer also testified that it was not the usual practice for street dealers to flag down cars to make sales. He testified that street dealers normally ignored passing cars, reacting only when a driver in some way indicated an interest in buying drugs.

The state’s reliance on State v. Hall, 165 Conn. 599, 345 A.2d 17 (1973), State v. Bowens, 24 Conn. App. 642, 591 A.2d 433, cert. denied, 220 Conn. 906, 593 A.2d 971 (1991), and State v. Taylor, 23 Conn. App. 426, 580 A.2d 1004 (1990), is misplaced.

In Hall, an undercover police officer made the buy while another undercover officer watched from about six feet away. The observing officer could not identify the item as it changed hands, but the buying officer gave the item directly to him, and he took it immediately to the police laboratory, where it tested to be heroin. State v. Hall, supra, 165 Conn. 601-602.

In Bowens, the drug sale took place in a dark alley and the surveilling officer could not see it. When the backup team apprehended the buyer, however, he had drugs in his possession and admitted having bought them from the defendant. When the officers approached the defendant, he fled, dropping envelopes of heroin similar to the one found in the buyer’s car. State v. Bowens, supra, 24 Conn. App. 643-45.

In Taylor, the police saw a clear plastic bag change hands. When they stopped the buyer, he had a clear plastic bag of what proved to be cocaine and admitted to having just bought it from the defendant for $600. When the defendant was arrested, he had $601 in his pocket. State v. Taylor, supra, 23 Conn. App. 427. In each of these cases, the facts supported a reasonable inference that the item passed from the defendant to the buyer was, in fact, the drugs subsequently found in the buyer’s possession. In the present case, the facts support only a speculation that that is what occurred.

State v. Arbelo, supra, 37 Conn. App. 156, is much closer to the facts of this case. In Arbelo, we reversed a conviction where the surveilling officer could not see what passed between the defendant and the alleged buyer. After the exchange took place, the observing officer watched the alleged buyer until he turned the corner, where he was arrested by the backup team. When stopped, the alleged buyer said, “Okay, you got me, it’s in my vest pocket.” Id., 159. The police retrieved a small packet of marijuana. The defendant was then arrested. He did not resist, and no drugs were found on him or hidden in the immediate area. The alleged buyer did not testify at trial and the source of the marijuana that he possessed was never established. Under these circumstances, it was not reasonable to exclude the hypothesis that the alleged buyer already had the marijuana before his brief contact with the defendant.

The present case against the defendant is weaker than that in Arbelo. In Arbelo, the alleged buyer did not testify; here the buyer testified and denied, both from the stand and face-to-face, that the defendant was the seller. In the face of this testimony, and with the dearth of direct or circumstantial evidence, “the factual existence of a drug transaction between [James] and the defendant rests on speculation and conjecture.” Id., 161. There may be suspicion of drug activity between the defendant and James, but this is far from satisfying the state’s burden of proving its case beyond a reasonable doubt. “The evidence does not exclude every reasonable hypothesis of innocence.” Id., 162, citing State v. Ford, supra, 230 Conn. 693. Because the cumulative effect of the evidence does not support a finding of guilt on the first count, the second count also fails.

The judgment is reversed and the case is remanded' with direction to render judgment of not guilty on both counts.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who . . . sells ... to another person ... a narcotic substance . . . 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 . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 . . . by . . . selling ... to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 . . . .”

       A jumbo is described as “the small corner of a sandwich baggie tied in a knot . . . mak[ing] a little . . . circle” containing drags. Monroe testified that this amount sold on the street for $10 to $20.

       No one was charged in connection with the heroin. There were other people in the laundromat.

       There was a connecting door in the common wall between the laundromat and the grocery store next-door.

       The buying officer died before the trial.