author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. KICKY KISER
    (15042)
    Dupont,, C. J., and Heiman and Shea, Js.

      Argued April 30
    officially released October 1, 1996

      Jeremiah Donovan, special public defender, with whom, on the brief, were Terry Donovan, special public defender, and Alix Biel, law student intern, for the appellant (defendant).

      Peter A. McShane, assistant state’s attorney, with whom, on the brief, was Kevin T. Kane, state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278 (b), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), and possession of drug paraphernalia in violation of General Statutes § 21a-267 (a). The jury acquitted the defendant of a fourth charge of possession of marijuana. On appeal, the defendant claims that the trial court improperly (1) refused to order the state to disclose the identity of certain confidential police informants and declined to conduct an in camera examination of those informants, (2) refused to deliver a cautionary instruction concerning a comment made by the state’s attorney relating to the defendant’s post-arrest silence, a comment that the defendant claims violated her due process right to a fair trial, (3) refused to instruct the jury concerning the statutory definitions of “narcotic substance” and “controlled substance,” thereby depriving the defendant of her constitutional right to have the jury determine whether the state had satisfied its burden of proof with respect to each element of the offenses charged, (4) prohibited the defendant from testifying that, prior to her arrest in this case, she had never been arrested for or convicted of a crime, and (5) excluded evidence that another individual had entered a guilty plea and was awaiting sentencing for possession with intent to sell the same cocaine that was the subject of the defendant’s case. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On September 27,1994, the defendant was sharing an apartment at 37-A Lake Street in Norwich with Lisa Wosston and Wosston’s two children. The defendant and Wosston had been sharing the apartment for approximately two months and were its only adult occupants. During the time that Wosston and the defendant shared the apartment, people were constantly entering and shortly thereafter leaving the apartment. The Norwich police department conducted a surveillance of the apartment over a two or three day period prior to September 27, 1994, and observed the constant flow of people at the apartment.

On September 27, 1994, the defendant and Nathaniel Charles arrived at the apartment together and went directly into the defendant’s bedroom. At approximately 7:19 p.m., members of the statewide narcotics task force, with members of the Norwich police department, executed a search and seizure warrant at 37-A Lake Street. The warrant authorized the search of the premises as well as a search of the persons of the defendant and Wosston.

The police entered the apartment through an unlocked door that led into the kitchen. A closed door that led into a bedroom was forced open by Officer Mark Rankowitz of the Norwich police department. Rankowitz entered the bedroom followed by Officers John A. John and Christopher Ferace.

The defendant and Charles were lying on a mattress on the floor of the bedroom. Charles was holding a razor blade in his hand and was cutting a substance on a cutting board that was resting on a small strongbox on the floor. The defendant was holding a plastic bag containing a substance, and she dropped the bag as the police entered the bedroom. The defendant and Charles were handcuffed and placed under arrest.

The police confiscated the cutting board and a white rock-like substance that was on the board. The police also seized fifteen clear plastic bags containing a beige rock-like substance. The strongbox contained a clear plastic bag containing a number of rock-like pieces individually packaged in plastic wrap.

The rock-like material confiscated at 37-A Lake Street was cocaine in freebase form, otherwise known as crack cocaine, and weighed 37.75 grams, representing approximately 180 individual dosage units. Cocaine in freebase form is not water soluble and when heated becomes a vapor smoke that is inhaled into the lungs.

The police also confiscated empty plastic bags and packaging materials that were next to the strongbox, a loaded .40 caliber dock semiautomatic handgun from the strongbox, and a beeper. No materials indicating the use of cocaine such as pipes or other implements were found on the premises.

The quantity of drugs was consistent with an amount held for sale and inconsistent with an amount held for personal use. The presence of the beeper indicated that the drugs were being sold from the premises because drug dealers make use of beepers as a method of communication. The individually wrapped packages of cocaine and the presence of packaging material were also consistent with the preparation of drugs for sale. The lack of smoking devices on the premises indicated that the drugs were not for personal use. The manner in which the chips of crack cocaine were removed from the bulk product with a razor blade and packaged in the ends of clear plastic bags was consistent with practices of a freebase cocaine dealer.

The defendant’s apartment at 37-A Lake Street in Norwich is 1370 feet from the property line of St. Joseph’s School. The distance from the most remote comer of the apartment building to the property line of the school is 1410 feet.

At trial, the defendant testified in her own behalf. She asserted that Wosston had invited her to be her roommate and that she moved into 37-A Lake Street toward the end of July, 1994. The defendant claimed that she met Charles in June, 1994, and that he became her boyfriend in August, 1994. She claimed that sometime between September 7 and September 10, 1994, Charles brought drugs into the apartment at 37-A Lake Street. The defendant asserted that she ordered Charles to remove his drugs from the apartment and that Charles became angry and left the apartment. The defendant claimed that Charles brought drugs into the apartment on a second occasion and that, when she told him to remove the drugs, he again became angry.

The defendant testified that on September 17, 1994, Charles came to the apartment with a small safe and asked if he could leave the safe, which contained “work,” in the apartment. The defendant testified that the term “work” means narcotics. The defendant claimed that when she told Charles that he could not store the material with her, Charles became enraged, slapped her face and left with the safe.

The defendant asserted that she did not speak with Charles between the day that he struck her and the day that they were arrested in the defendant’s bedroom. She claimed that on September 25, 1994, she observed Charles at the corner of Lake and Boswell Streets, but did not speak with him.

The defendant testified that on September 27, 1994, Charles called her at home and asked if he could come over to see her. She testified that she told Charles he could visit and she then went to take a shower. The defendant claimed that when she came out of the shower and went into the bedroom, Charles was in the room sitting on the edge of the bed cutting up drugs. She testified that she told Charles to take his drugs and to leave, but, at that point, the police entered the bedroom. The defendant claimed that when the police entered her apartment, she was walking past Charles and toward the bed. The defendant asserted that when the police entered her bedroom, she jumped onto the bed and began jumping up and down and screaming. She claimed that when the police entered the room, she had a towel in her hand that she promptly dropped. The defendant testified that she was not lying on the mattress next to Charles when the police entered the room, was not holding a plastic bag and was not in possession of the cocaine with the intent to sell it.

I

The defendant first claims that the trial court improperly refused to order the state to disclose the identity of two confidential informants who had supplied information to the police that was used in establishing probable cause for the issuance of the search and seizure warrant. The defendant posits that the trial court’s refusal was improper because the informants “had placed the responsibility for dealing in cocaine upon one of the state’s crucial witnesses,” namely, Wosston. The defendant also asserts that the trial court improperly declined “to conduct an in camera examination of those informants in order to determine the extent to which their observations were exculpatory.” We are not persuaded.

The following additional information is necessary to our resolution of this claim. In their application for the search and seizure warrant, the police stated that two confidential informants, A and B, had informed the police that drug related activity was taking place at 37-A Lake Street. Informant A told the police that a crack cocaine operation was based at the apartment. Informant A also told the police that a supply of crack cocaine was being kept inside the apartment and that “two females,” including “Lisa,” were selling the cocaine in front of the apartment. Informant A participated in a controlled purchase of crack cocaine from an unknown male who was selling the cocaine for “Lisa” outside the apartment. Informant B also revealed that a crack cocaine operation was based at 37-A Lake Street. Informant B participated in a controlled purchase of crack cocaine from a female named “Kiki,” who was selling crack cocaine from and residing at the apartment. The application did not reveal that the confidential informants were involved in the drug selling operation allegedly taking place at 37-A Lake Street.

When called on to determine the propriety of a trial court’s ruling refusing to order the disclosure to the defendant of the identity of a confidential informant, we must decide whether the trial court abused its discretion in ruling as it did rule. State v. McDaniel, 176 Conn. 131, 132-33, 405 A.2d 68 (1978); State v. Johnson, 162 Conn. 215, 229, 292 A.2d 903 (1972). We conclude that, under the circumstances of this case, the trial court did not abuse its discretion in refusing to order the disclosure of the names of the confidential informants.

“The United States Supreme Court’s decision in Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), provides a starting point for our analysis of how courts should balance the state’s interest in protecting informants against the defendant’s interest in obtaining information useful in conducting his defense. Courts have recognized an informant’s privilege. ‘What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. . . . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. . . .’ Id., 59.” State v. Richardson, 204 Conn. 654, 657-58, 529 A.2d 1236 (1987).

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

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

“ ‘Under the Roviaro balancing test, case law has delineated the extent to which disclosure “might have been helpful to the defense.” . . . Before a court will compel disclosure, the informant typically must be a participant in the alleged crime or an eyewitness thereto.’ . . . State v. Lee, 30 Conn. App. 470, 479, 620 A.2d 1303 (1993), aff'd, 229 Conn. 60, 640 A.2d 533 (1994). If the informant, in addition to being a participant or an observer of the crime, claims that the defendant was not the person involved in the crime, disclosure is, of course, all the more necessary. Roviaro v. United States, supra, 353 U.S. 64-65. ‘By contrast, courts generally agree that if the informant provides information to law enforcement officers without any further involvement, disclosure must yield to the protection of the informant.’ State v. Lee, supra, 479. In cases in which the defendant has distinctly invoked the defense of entrapment, or where the testimony of the informant might show entrapment, disclosure is favored. Roviaro v. United States, supra, 64; State v. Lee, supra, 480. However, ‘[m]ere speculation that the informant’s information will be helpful to the defense is not sufficient to mandate disclosure . . . .’ State v. Richardson, [supra, 204 Conn. 663]; see also State v. Harris, 159 Conn. 521, 529, 271 A.2d 74 (1970), cert. dismissed, 400 U.S. 1019, 91 S. Ct. 578, 27 L. Ed. 2d 630 (1971). ‘The defendant bears the burden of demonstrating the need for disclosure of an informer’s identity.’ State v. West, 178 Conn. 444, 446, 423 A.2d 117 (1979).” (Emphasis in original.) State v. Jackson, 37 Conn. App. 491, 496-98, 656 A.2d 1056 (1995).

Here, there is no indication that the confidential informants were participants in the crimes with which the defendant was charged. The charges against the defendant did not include the sale of a narcotic or controlled substance but were limited to possession with intent to sell. Moreover, the defendant conceded at trial that the informants were neither witnesses to nor participants in the crimes with which the defendant was charged. Thus, the informants did nothing more than provide the police with information that was included in the application for a search and seizure warrant. It was the evidence that was discovered in the course of the search that gave rise to the defendant’s convictions, not the information used to establish probable cause for the warrant. “When the evidence discloses that the informer was merely an informer and nothing more the government is not compelled to disclose his identity.” State v. Johnson, supra, 162 Conn. 229.

The defendant’s theory of defense was that the cocaine inside the apartment belonged to Charles, and that, therefore, she could not have been in possession of the cocaine with the intent to sell it. The informants, however, provided no information to the police that implicated Charles as the owner of the cocaine found in the apartment. The information provided by the informants indicated that the defendant was directly involved in the sale of drugs, a charge not levied against her in this case. Moreover, the fact that the informants implicated Wosston, a witness for the state, as a drug seller operating out of the apartment with the assistance of a man does not mean that the informants possessed exculpatory information as to whether Charles was the sole possessor of the cocaine at issue. Thus, we are left with “only surmise and conjecture ... as to how the informer[s] could supply information which would be beneficial to the defendant’s case.” Id.

On the basis of the foregoing facts, we conclude that the trial court properly denied the motion for disclosure of the names of the confidential informants.

The defendant also claims that the trial court acted improperly in refusing to conduct an in camera examination of the confidential informants. Whether to conduct an in camera examination is a decision that is also vested in the sound discretion of the trial court. State v. Richardson, supra, 204 Conn. 662. An in camera examination is not mandated simply because a defendant makes a request for the names of the informants. Id. “In determining whether to conduct an in camera proceeding a judge must balance the ‘public interest in protecting the flow of information against the individual’s right to prepare his defense.’ Roviaro v. United States, supra, [353 U.S.] 62. A defendant’s interest in having a judge conduct an in camera proceeding is not of constitutional magnitude when an informant is a mere tipster who did not participate in the crime which is being charged. The state has a superior interest in protecting the identity of its informants when the truth of the testimony offered in proof of the crime itself is not implicated.

“There are serious potential risks involved in conducting an in camera hearing to examine an informant. One should distinguish between in camera proceedings in which a judge merely examines documents or records, and those which require the actual physical presence of an individual. . . . Requiring an informant to attend an in camera hearing involves a substantial risk that his identity will be discovered. Such a hearing would normally require an informant to come to the courthouse. The defendant or his criminal associates may through a variety of means learn when the proceeding is taking place, and observe those who enter the courthouse at that time. Those people who attend the hearing may either intentionally or unintentionally leak information about the informant’s identity. Not only may an in camera hearing endanger the informant’s safety, but potential informants may be discouraged from revealing information if there is a significant likelihood that they must risk attending such a hearing. Many potential informants may be willing to trust one or two police officers to protect their identity but not the criminal justice system as a whole. In exercising its discretion about the need for an in camera hearing, a trial court should consider the risks that a hearing may present for an informant.” (Citations omitted.) State v. Richardson, supra, 204 Conn. 663-64.

On the basis of our analysis as to why the defendant was not entitled to disclosure of the names of the confidential informants, we also conclude that the trial court properly refused the defendant’s request for an in camera examination of the informants.

II

The defendant next asserts that the state’s comment on the defendant’s postarrest silence and the trial court’s refusal to deliver a cautionary instruction regarding that comment violated the defendant’s due process right to a fair trial. We are unpersuaded.

Certain additional information is necessary to our resolution of this claim. In the course of the defendant’s final argument, defense counsel argued: “The police bang on the door. They shout, ‘police with a warrant.’ They wait about fifteen to twenty seconds. . . .As they advance through the kitchen, they’re shouting the whole time, ‘Police with a warrant.’ There’s nothing improper about shouting like this. They do it to warn the residents that they’re not burglars. But what is the likelihood that [the defendant] would stand there for at least a half a minute with a bag in her hand waiting for the police to arrive, and then drop it just as they walk in the door? It’s far more likely that the noise and the shouting would cause her to do exactly what she said she did, jump up on the bed and scream.”

Defense counsel further argued: “Before sending this eighteen year old to prison, before branding her as a convicted felon, before locking her in a cage with people who might be animals, we demand proof beyond a reasonable doubt. She’s an eighteen year old who made a bad mistake in her choice of boyfriends. But picking the wrong boyfriend or girlfriend is not a crime. Otherwise we would all be shipped off to jail at some point in our lives. There’s a big difference between [the defendant] and us however. . . . When you live on welfare and you live in such neighborhoods, the mistakes that you make are amplified. You pick the wrong boyfriend, you end up in jail. She picked the wrong boyfriend. She was afraid of him. She tried to get away from him. She refused to assist him in hiding his drugs, but she was not guilty of a crime. She should not end up in jail.”

In its rebuttal argument, the state asked the jury to use common sense in evaluating the evidence and the claims of the defendant, and argued, “[Although [the defendant] heard the police coming, she doesn’t distance herself from the crack cocaine. She doesn’t say to the police, thank goodness you’re here. Get that no good, drug dealing, woman beating man out of here. Her testimony is that she’s just jumping up and down on the bed. If she heard the police come in, wouldn’t she have distanced herself from that a little bit better? Yet the police, three police officers testified as to where she was and where her position is. I submit to you, ladies and gentlemen, if you use your common sense, you’ll see right through all of that, right through the defendant’s story. You won’t—you’ll pay heed to the judge’s [instruction] that sympathy should have . . . no role in your decision making process, something you ail indicated during the voir dire process.”

At the conclusion of the arguments the defendant objected to the state’s rebuttal argument, claiming that it constituted an improper comment on the defendant’s postarrest silence. The defendant requested that the trial court give “an emphatic instruction to the jury . . . that the defendant was not required during—any time during the course of this prosecution to make any statement. She has presented evidence to you. She has testified. And that certainly she was under no obligation. And I guess that’s the remedy I want.” The trial court did not charge on postarrest silence.

We note at the outset that the defendant cites article first, § 8, of the Connecticut constitution and the fourteenth amendment to the United States constitution in support of her due process claim. She also cites an abundance of state and federal case law. The defendant fails, however, to provide us with a separate analysis of her claim under the Connecticut constitution. Because the defendant has failed to provide us with a separate analysis under the Connecticut constitution, we choose not to review this claim under the Connecticut constitution. State v. Scarpiello, 40 Conn. App. 189, 198 n.4, 670 A.2d 856, cert. denied, 236 Conn. 921, 674 A.2d 1327 (1996). We thus rely on the cases interpreting use of postarrest silence under the federal constitutional mandate only.

“In Doyle v. Ohio, [426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976)], the United States Supreme Court held that the impeachment of a defendant through evidence of his silence following his arrest and receipt of Miranda warnings violates due process. The court based its holding in two considerations: First, it noted that silence in the wake of Miranda warnings is ‘insolubly ambiguous’ and consequently of little probative value. Second and more important, it observed that ‘while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’ Doyle v. Ohio, supra, 617-19. The court recently reaffirmed Doyle's reasoning in Wainwright v. Greenfield, 474 U.S. 284, 290, 106 S. Ct. 634, 88 L. Ed. 2d 623 (1986), in which it held that the defendant’s silence following his arrest and receipt of Miranda warnings could not be used at trial to rebut his defense of insanity. The court reasoned: ‘The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant’s plea of insanity.’ Id., 292. Consistent with this rationale, the court has concluded that use at trial of silence prior to the receipt of Miranda warnings does not violate due process. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982) (postarrest silence); Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) (prearrest silence); see Wainwright v. Greenfield, supra, 291 n.6.” State v. Plourde, 208 Conn. 455, 465-66, 545 A.2d 1071, cert. denied, 488 U.S. 1034, 109 S. Ct. 847, 102 L. Ed. 2d 979 (1988).

Thus, it is clear’ that “[t]he principles of Doyle do not apply where the record fails to indicate that the silence of a defendant has been preceded by a Miranda, warning .... State v. Leecan, [198 Conn. 517, 524, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986)] .... State v. Crosby, [34 Conn. App. 261, 267, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994)].” (Internal quotation marks omitted.) State v. Rose, 41 Conn. App. 701, 711, 682 A.2d 1011 (1996). “[T]he Doyle . . . rule has no application unless the defendant has remained silent and could be considered to have done so in reliance on the implied assurances of the Miranda warnings. United States v. Crowder, 719 F.2d 166, 172 (6th Cir. 1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2352, 80 L. Ed. 2d 825 (1984). State v. Joly, 219 Conn. 234, 256-57 n.15, 593 A.2d 96 (1991).” (Internal quotation marks omitted.) State v. Rose, supra, 712.

The portion of the state’s rebuttal argument that the defendant claims was improper focused on the defendant’s behavior at the precise moment the police entered her bedroom. The record does not reflect that the police recited Miranda warnings at that moment. Moreover, the record is devoid as to when, if ever, the police advised the defendant of her Miranda rights. Silence that is not the product of reliance on Miranda is not protected -under Doyle. Id. Because there is no evidence that the police advised the defendant of her Miranda rights prior to the point in time about which the state commented in its rebuttal argument, we conclude that the defendant’s Doyle claim is without merit.

Ill

The defendant next asserts that the trial court improperly failed to charge the jury on the statutory definitions of “narcotic substance” and “controlled substance.” The defendant posits that this failure deprived her of her constitutional right to have the jury determine whether the state has satisfied its burden with respect to each element of the offenses with which she was charged. We disagree.

The defendant was charged with and found guilty of violating § 21a-278 (b) and § 21a-278a (b). Section 21a-278 (b) prohibits the possession of a “narcotic substance” with the intent to sell, while § 21a-278a (b) prohibits the possession of a “controlled substance” with the intent to sell within 1500 feet of a school. In its instructions to the jury concerning the elements of the offenses with which the defendant was charged, the trial court instructed, inter alia, “cocaine is a narcotic substance” and “cocaine is a controlled substance.”

At the completion of the jury charge, the defendant excepted to the charge, asserting that the trial court had failed to provide definitions of “narcotic substance” and “controlled substance.” The defendant claimed that she was entitled to have the court read to the jury the statutory definitions of those terms.

After a colloquy among counsel and the trial court, the jury was recalled. The court, in a supplemental charge, reminded the jury that it had heard expert testimony that cocaine is a narcotic substance and a controlled substance. The court instructed the jury, however, that it could accept or reject that testimony and that it should make a factual determination as to the nature of cocaine. At the completion of the supplemental charge, the defendant reiterated her claim that she was entitled to have the statutory definitions of “narcotic substance” and “controlled substance” read to the jury.

We now set forth our standard of review of the defendant’s constitutional attack on the trial court’s charge. “An improper instruction ... on an element of an offense, is of constitutional dimension. . . . [T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

In State v. Vessichio, 197 Conn. 644, 650, 500 A.2d 1311, cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986), our Supreme Court addressed the issue of whether the trial court properly instructed the jury that “cocaine is a narcotic substance.” The court concluded as follows: “The defendant’s essential complaint is that the trial court did not ‘define the meaning of the words narcotic substance . . . .’ With regard to the definition of ‘narcotic substance,’ the trial court correctly instructed the juiy that ‘cocaine is a narcotic substance.’ Under our law, the jury was not at liberty to conclude otheiwise. General Statutes § 21a-240 (30). . . . [I]t was unnecessary for the trial court to define ‘narcotic substance’ as if the jury were required to determine for itself whether cocaine fell within that definition. The charge was ‘correct in law and adapted to the issues,’ as our cases require. See, e.g., State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982).” State v. Vessichio, supra, 650.

Vessichio pointedly serves to defeat the defendant’s claim that the trial court should not have instructed the jury that “cocaine is a narcotic substance.” Moreover, the reasoning in Vessichio also works to defeat the defendant’s claim that the trial court should not have instructed the jury that “cocaine is a controlled substance.” “Under our law, the jury was not at liberty to conclude otherwise.” Id., 650; General Statutes § 21a-240 (9); Regs., Conn. State Agencies § 21a-243-8 (a) (4).

After properly instructing that cocaine is both a narcotic substance and a controlled substance, the trial court, in its supplemental charge, also reviewed the evidence and left it to the jury to determine as a question of fact whether cocaine was a narcotic substance and a controlled substance. Thus, the charge gave the defendant more than she was entitled to as a matter of law.

In addition to the proper instructions regarding the nature of cocaine, the trial court set forth the elements of the crimes charged and instructed the jury that, in order to find the defendant guilty of those crimes, it must find that the state has proven each element of those crimes beyond a reasonable doubt. Viewing the charge as a whole, we conclude that it is not reasonably possible that the jury was misled or that an injustice resulted by virtue of the trial court’s charge. The claim of the defendant is, therefore, without merit.

IV

The defendant next claims that the trial court improperly refused to permit her to testify that, prior to her arrest in the present case, she had never been arrested for or convicted of any crime. We disagree.

At trial, the state filed a motion in limine requesting that the trial corut “prohibit the Defendant from introducing any testimony regarding the Defendant’s lack of criminal record and for the fact that she has never been arrested.” In support of its motion, the state cited State v. McLaughlin, 132 Conn. 325, 341, 44 A.2d 116 (1945). McLaughlin holds that a defendant may not prove good character by introducing evidence that the defendant has never been arrested. Id. The defendant filed an opposition to the state’s motion, claiming that “[t]he defendant, by introducing evidence of her prior law-abiding nature, is not seeking to establish her character. Rather, she seeks to introduce evidence that disproves the state’s contention that she exercised control over the substance in question. That she has never been arrested is evidence—admittedly not conclusive, but no evidence ever really is—that she did not have the knowledge, experience, opportunity and occasion to possess and control the substances charged here in the information.” (Emphasis added.) The trial court granted the state’s motion.

On appeal, the defendant maintains, as she did in the trial court, that she “proffered her lack of arrests and convictions in order to demonstrate that she did not have the experience, knowledge, opportunity, and occasion to possess and control the substances charged.” We are unpersuaded.

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. State v. Miller, 202 Conn. 463, 482, 522 A.2d 249 (1987). The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. State v. Avis, 209 Conn. 290, 298, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989).” (Internal quotation marks omitted.) State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996).

“ ‘Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. State v. Blake, 69 Conn. 64, 76, 36 A. 1019 (1897). . . . Evidence is irrelevant or too remote if there is “such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter.” State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. State v. Briggs, [179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980)] .... Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. State v. Miller, [supra, 202 Conn. 482]; State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985).’ ... C. Tait & J. LaPlante, [Connecticut Evidence (2d Ed. 1988)] § 8.1.1, pp. 225-26.” (Emphasis in original.) State v. Prioleau, supra, 235 Conn. 305-306.

We conclude that the trial court did not abuse its discretion in excluding the defendant’s testimony that she had never been arrested for or convicted of any crime. We disagree with the defendant’s claim that such evidence was relevant to her guilt or innocence. The defendant’s testimony concerning her lack of arrests or convictions prior to September 27, 1994, could not have logically aided the jury in determining whether she, on September27,1994, possessed the cocaine that the police found in her presence in her bedroom. The state, in its information, did not allege that the defendant had possessed cocaine at any time other than September 27, 1994. The only evidence relevant to the determination of whether the defendant possessed the cocaine at issue would have been evidence that tended to establish a connection, or lack thereof, between the defendant and the cocaine found in her bedroom on the day of her arrest. The defendant’s prior lack of arrests and convictions would not have helped the jury to determine whether such a connection in fact existed. Thus, the defendant’s claim that the proffered testimony was relevant to a determination of whether she possessed the cocaine at issue is without merit.

In addition to our conclusion that the defendant’s testimony concerning her “law-abiding nature” would not have been relevant to whether she possessed the cocaine at issue, we also conclude that such testimony would have been inadmissible as evidence of her allegedly good character. See State v. McLaughlin, supra, 132 Conn. 341 (“testimony of two defendants that they had never been arrested was not the proper way to prove their good character and was properly excluded”); State v. Maisonet, 16 Conn. App. 89, 98, 546 A.2d 951, cert. denied, 209 Conn. 816, 550 A.2d 1086, cert. denied, 489 U.S. 1014, 109 S. Ct. 1127, 103 L. Ed. 2d 189 (1988) (“[s]howing the jury that the defendant ‘only’ had a prior misdemeanor conviction, which the defendant attempted to do, is not ‘good character’ evidence which a defendant has the right to introduce when he takes the stand”). Evidence of good character “ ‘must pertain to the character trait involved in the crime charged, not general good character.’ [C. Tait & J. LaPlante, supra, § 8.3.4, p. 238]; State v. Martin, 170 Conn. 161, 163, 365 A.2d 104 (1976).” State v. Maisonet, supra, 98; see also States v. Blake, 157 Conn. 99, 103-104, 249 A.2d 232 (1968); State v. Campbell, 93 Conn. 3, 10, 104 A. 653 (1918). Any testimony that the defendant had never been arrested for or convicted of a crime would have been improper evidence pertaining to general good character, as opposed to proper evidence pertaining to the specific character traits involved in the crimes with which she was charged.

V

Finally, the defendant asserts that the trial court improperly excluded evidence that another person, namely, Charles, had entered a guilty plea and was awaiting sentencing for possession with intent to sell the same cocaine that was the subject of the defendant’s prosecution. We are not persuaded.

The following information is necessary to our resolution of this claim. Charles was arrested with the defendant on the basis of the same facts and circumstances as set forth herein. He entered a plea of guilty to possession of narcotics with intent to sell. At the time of the defendant’s trial, Charles had not yet been sentenced. Prior to the introduction of evidence at the defendant’s trial, the state filed a motion in limine to preclude the defendant from introducing evidence of Charles’ guilty plea. The defendant argued to the trial court that evidence of Charles’ plea might tend to prove that the defendant did not possess the cocaine at issue. The trial court granted the state’s motion, thereby precluding the introduction into evidence of Charles’ plea.

On appeal, the defendant argues that Charles’ guilty plea was relevant because it could have tended to establish that the defendant was not in exclusive possession of her apartment, that Charles had exercised dominion and control over the cocaine, and that Charles controlled the plastic bag into which the cocaine was being placed. We do not agree.

We will not repeat the principles of law that govern our review of evidentiary rulings concerning relevance. We conclude that evidence of Charles’ guilty plea lacked relevance and that the trial court did not abuse its discretion in excluding the evidence.

Our examination of the defendant’s claims of admissibility leads us to conclude that the defendant offered the evidence of Charles’ guilty plea for the purpose of showing that Charles was the sole person guilty of illegally possessing the cocaine in the defendant’s bedroom. Our Supreme Court has held that “[t]he fact that [the coparticipant] was convicted ... in connection with the crimes committed [during a particular incident] does not tend to establish anything about whether the defendant was guilty of the crimes with which he was charged, relative to the same incident. That another [person] may have been punished for the crimes sheds no light on whether the defendant participated in the commission of the crimes. Consequently, [the copartici-pant’s] conviction . . . should be excluded as irrelevant if offered at . . . trial to show that another person had been convicted in connection with the incident . . . .” State v. Esposito, 223 Conn. 299, 320-21, 613 A.2d 242 (1992). Thus, the trial court properly excluded the evidence of Charles’ guilty plea.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . .

       General Statutes § 21a-278a (b) provides: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with tire intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering 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, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place 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 or 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school, a public housing project or a licensed child day care center, as defined in section 19a-77, that is identified as a child day care center by a sign posted in a conspicuous place. For the purposes of this subsection, ‘public housing project’ means dwelling accommodations operated as a state or federally subsidized multifamily housing project by a housing authority, nonprofit corporation or municipal developer, as defined in section 8-39, pursuant to chapter 128 or by the Connecticut Housing Authority pursuant to chapter 129.”

       General Statutes § 21a-267 (a) provides as follows: “No person shall use or possess with intent to use drug paraphernalia, as defined in subdivision (20) of section 21a-240, to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal, or to inject, ingest, inhale or otherwise introduce into the human body, any controlled substance as defined in subdivision (9) of section 21a-240. Any person who violates any provision of this subsection shall be guilty of a class C misdemeanor.”

       The trial court did, however, fully and carefully instruct the jury on the defendant’s status as a witness and that her testimony was to be weighed and evaluated in the same manner as that of any other witness. The trial court also carefully and correctly instructed the jury that the defendant bore no burden of proof and that the burden rested on the state to prove the defendant guilty by proof beyond a reasonable doubt.

       See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       The defendant posits that regardless of the Doyle rale, we should apply the rule of State v. Ferrone, 97 Conn. 258, 266, 116 A. 336 (1922), that postarrest silence is inadmissible under principles of the law of evidence. Because “Femme is grounded upon the rules of evidence and does not purport to establish a constitutional principle”; State v. Leecan, supra, 198 Conn. 526; and because the defendant’s claim is one of constitutional impropriety regarding a prosecutor’s comment on rebuttal argument as opposed to one of an evidentiary nature, the defendant’s reliance on Ferrone is misplaced.

       Once again, the defendant has failed to provide us with a separate analysis of this claim under the Connecticut constitution and, therefore, we choose not to review the claim under the Connecticut constitution. State v. Scarpiello, supra, 40 Conn. App. 198 n.4.

       See footnote 1.

       See footnote 2.

       General Statutes § 21a-240 (9) provides: “ ‘Controlled substance’ means a drug, substance, or immediate precursor in schedules I to V, inclusive, of the Connecticut controlled substance scheduling regulations adopted pursuant to section 21a-243 . . . .”
      General Statutes § 21a-243 (c) provides: “The commissioner of consumer protection acting upon the advice of the Commission of Pharmacy, may by regulation designate, after investigation, as a controlled substance, a substance or chemical composition containing any quantity of a substance which has been found to have a stimulant, depressant or hallucinogenic effect upon the higher functions of the central nervous system and having a tendency to promote abuse or physiological or psychological dependence or both. Such substances are classifiable as amphetamine-type, barbiturate-type, cannabis-type, cocaine-type, hallucinogenic, morphine-type and other stimulant and depressant substances, and specifically exclude alcohol, caffeine and nicotine. Substances which are designated as controlled substances shall be classified in schedules I to V by regulations adopted pursuant to subsection (a) of this section.”
      Section 21a-243-8 (a) of the Regulations of Connecticut State Agencies lists, as controlled substances in schedule II, “[a]ny of the following substances, except those narcotic drugs listed in other schedules, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by combination of extraction and chemical synthesis ... (4) coca leaves and any salt, compound, derivative, orpreparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine . . . .”
      General Statutes § 21a-240 (30) provides in relevant part: “ ‘Narcotic substance’ means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis . . . (B) cocaine-type, coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, isomer, derivatives or preparation thereof which is chemically equivalent or identical with any of these substances or which are similar thereto in physiological effect and which show a like potential for abuse, but not including decocainized coca leaves or extractions of coca leaves which do not contain cocaine or ecgonine . . . .”

       In the additional instructions, the trial court charged the jury as follows: “In the first count of the information, the charge is possession of a narcotic substance with intent to sell. It is alleged here that the materials that were possessed was cocaine. It’s also a fact for you to determine whether or not cocaine is a narcotic substance. As I recall, there was evidence from Dr. Pinder wherein he said cocaine was a narcotic substance, but that’s a question of fact. You can either reject or believe his testimony. Similarly, in the second count where it gets to the charge, doesn’t call it narcotic—the statute doesn’t call it a narcotic substance. It says possession of a controlled substance with intent to sell within 1500 feet of the school. The materials which are alleged to be in violation of that statute, possession et cetera, is again cocaine. You must factually determine whether or not cocaine is a controlled substance. Again, it’s my recollection which doesn’t control. It’s your recollection that Dr. Pinder testified that cocaine was both a narcotic substance and a controlled substance. It’s up to you to determine whether or not that or any other testimony on the subject establishes that fact issue. That is, whether cocaine is a controlled substance.”

       See footnote 10.

       See part IV of this opinion.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    RICHARD BLUMENTHAL ET AL. v. LYNNE MARIE BEERS WHITE ET AL.
    (14692)
    Landau, Schaller and Hennessy, Js.

      Argued April 25
    officially released October 1, 1996

      Janet A. Spaulding-Ruddell, assistant attorney general, for the appellant (named plaintiff).
   HENNESSY, J.

The plaintiff, Attorney General Richard Blumenthal, acting in his official capacity pursuant to General Statutes § 3-125, appeals from the judgment of the trial court. Blumenthal and the city of Bridgeport brought this action seeking (1) to have the court, apply the equitable doctrine of deviation concerning (a) two gifts of real property made to Bridgeport by James Walker Beardsley (Beardsley) in 1878 and 1881 for the puipose of a public park and (b) a fund left to Bridgeport, in 1956 by Elton G. Rogers for the puipose of developing an existing zoo on the property left by Beardsley, and (2) judgment declaring that a proposed transfer of the Beardsley property by Bridgeport does not violate the conditions subsequent in both the 1878 and 1881 deeds. The defendants in this action are the heirs of Beardsley. The trial court granted a motion to default all of the defendants for failure to appear except Lynne Marie Beers White. On appeal, Blumenthal claims that the trial court improperly (1) failed to characterize the two Beardsley gifts as charitable trusts or uses to which the equitable doctrine of deviation can be applied, (2) failed to apply the doctrine of deviation to the Beardsley gifts and the Rogers fund and (3) construed the successor language in the 1878 Beardsley deed.

The trial court found the following facts. In 1878 and 1881, Beardsley transferred land to Bridgeport for the purpose of creating a park. Bridgeport has assumed much of the financial responsibility for maintaining the park since it was created. In its memorandum of decision, the trial court stated, “Recently, Bridgeport has struggled financially, nearly to the point of bankruptcy. In an effort to preserve the park and its zoo in accord-anee with the intent of Beardsley and to assist the city financially, the state of Connecticut and the city of Bridgeport, with the consent of the defendant, Lynne Marie Beers White, an heir of Beardsley, have submitted [a] proposal to the court for approval.” The proposal involves the transfer of Beardsley Park and the Beardsley Zoological Gardens from Bridgeport to the parks division of the state department of environmental protection and the Connecticut Zoological Society, Inc., a nonprofit corporation, respectively, in exchange for approximately ten million dollars that will be applied to Bridgeport’s bond indebtedness. The proposal also involves the transfer of the Rogers fund to the Connecticut Zoological Society. To effectuate this plan, the plaintiffs requested that the trial court apply the equitable doctrine of deviation to the Beardsley gifts and the Rogers fund. The plaintiff also requested a declaratory judgment that the proposal does not violate conditions subsequent in the Beardsley deeds.

The 1878 deed provides in relevant part: “I James W. Beardsley ... do give grant bargain sell and confirm unto the said City of Bridgeport [description of property] . . . [t]o have and to hold the above granted and bargained premises with the privileges and appurtenances thereof unto the said The City of Bridgeport and their successors as and for a Public Park to be designated and known as Beardsley Park with the unlimited and perpetual rights in said City to use and improve the same for that purpose. But it is hereby provided that if said City shall at any future time attempt to devote said premises or any part of the same to any other use than that of a Public Park designated as aforesaid or shall attempt to deliver or convey the same or any part thereof said City shall thereupon forfeit all right and title to said premises and the absolute title to the same shall revert in the Grantor his heirs and assigns.”

The 1881 deed provides in relevant part: “I James Walker Beardsley ... do give, grant, bargain, sell and confirm unto the said City of Bridgeport [description of property] [t]o have and to hold the above granted and bargained premises, with the privileges and appurtenances thereof unto the said grantee forever to its own proper use and behoof. . . . The above deed is given only upon the following conditions: 1st, The said tracts therein conveyed are to be forever reserved, held, improved and used by said City of Bridgeport as apublic park to be called by the name of ‘Beardsley Park’ and for no other purpose. . . . Now therefore, if said conditions shall and each be fulfilled according to the terms hereof, then this deed shall be good and valid in law, but if the said City of Bridgeport shall fail to comply with any one of said conditions then this deed shall be void, and the title to the above described premises shall revert to said grantor and his heirs at law. And upon such breach of condition they shall be entitled to enter upon said premises and possess the same as their own estate.'

The trial court held that both deeds created a fee simple subject to a condition subsequent rather than a trust. It then concluded that because deviation is a trust doctrine, it could not and would not apply deviation to the deeds in question. The trial court, nevertheless, held that the part of the proposal that sought to transfer the portions of Beardsley Park to the state did not violate the conditions subsequent, reasoning that the “form or level of the political entity which held and maintained the park was of no moment to Beardsley.” The trial court also held that “[t]he transfer to the Connecticut Zoological Society, Inc. stands on different footing [because the Zoological Society] is neither a political subdivision or an administrative agency of the state or of the city” and that the proposed transfer to it would violate the conditions subsequent in the deeds.

The first issue before us is whether the deeds created an equitable interest to which the equitable doctrine of deviation applies. Relying on Winchester v. Cox, 129 Conn. 106, 111-12, 26 A.2d 592 (1942), the trial court held that the Beardsley deeds did not create trusts. The trial court also distinguished the deeds in this case from the deeds in Winchester on the ground that the deeds in this case have a condition subsequent with a right of reentry. While a trust and a condition subsequent may be used in place of each other to achieve a similar goal, they are not exclusive of each other. 1 G. Bogert, Trusts and Trustees (2d Ed. Rev. 1984) § 35, p. 413-14. “A trustee may hold an interest on condition subsequent.” Id., 414; see Bristol Baptist Church v. Connecticut Baptist Convention, 98 Conn. 677, 682, 120 A. 497 (1923); 9 G. Bogert, supra, § 420, p. 89. Accordingly, we conclude that the trial court improperly characterized the deeds in this case.

Winchester is, however, instructive in the determination of the proper characterization of these deeds. In Winchester v. Cox, supra, 129 Conn. 112, our Supreme Court held that “[t]o characterize the capacity in which a municipality holds land conveyed to it for carrying out one of its proper purposes as that of a trustee, while useful in many instances in working out the rights of the parties, is not, in the absence of statute, altogether accurate, and its capacity is rather that of a quasi trustee. . . . We cannot construe the deeds involved in this action as sufficient to make the town strictly a trustee of the lands in question . . . .” (Citations omitted.) In Winchester, our Supreme Court held that the deed at issue created a charitable use. Id. The Supreme Court cited § 373 of the Restatement of Trusts to support its conclusion that the instrument in that case was not a trust in the strict sense, but a charitable use. Restatement (Second) of Trusts § 373 (1959) provides: “A trust for the erection or maintenance of public buildings, bridges, streets, highways, parks or other public works or for other governmental or municipal purposes is charitable.” This provision of the Restatement is explained by a passage in 15 Am. Jur. 2d, Charities § 5 (1976), which states: “It is to be noted that the Restatement of Trusts [Second] treats the ‘charitable trust’ as a species of trust, and all such dedications of property to charitable uses or purposes are so regarded and referred to by the courts.” Hence, while a charitable use is not a trust in the strict sense, it may be so regarded and treated by the courts.

Having described the interest that a charitable use creates, we must now determine whether equitable jurisdiction attaches to it. “In . . . recent times . . . the subject of charities has undergone a great deal of investigation, both in England and in the United States, and it has become definitely settled that trusts for charitable uses, or public charities, as known at the present time, are of ancient origin and were long recognized as a part of the common law, and that equitable jurisdiction attached to such trusts prior to the enactment of the Statute of Charitable Uses. In other words, the conclusion is that the law of charities did not derive its existence from the Statute of Charitable Uses and that there was inherent jurisdiction in the court of chancery over the subject of charities before the enactment of that statute. Accordingly, the proposition supported now by practically all the authorities in this country is that courts of equity, in various states, when they are not prohibited by statute, exercise an original inherent jurisdiction over charitable trusts and apply to them the rules of equity, together with such other rules as may be applicable under the laws of the several states, and this they do by virtue of their inherent powers, without reference to whether the Statute of Charitable Uses has been adopted in the particular state in question.” 15 Am. Jur. 2d 160, Charities § 136 (1976). Accordingly, we conclude that equity attaches to the charitable uses created by the Beardsley deeds.

Next, we determine whether the equitable doctrine of deviation applies to this case in light of the trial court’s findings. “The court possesses . . . [an] important power, namely, that of changing, or permitting the trustee to change, the methods of administration set forth in the trust instrument, when this is deemed necessary or highly desirable in order to enable the trustee to perform the trust.” 8 G. Bogert, Trusts and Trustees (2d Ed. Rev. Repl. 1991) § 396, p. 312. “Through exercise of its deviation power the court alters or amends administrative provisions in the trust instrument but does not alter the purpose of the charitable trust or change its dispositive provisions.” Id., § 396, p. 314. Deviation has been applied to preserve the “dominant purpose by modifying what is described as [a] secondary purpose, often the method or means for carrying out the dominant purpose.” Id., § 396, p. 330. In Bristol Baptist Church v. Connecticut Baptist Convention, supra, 98 Conn. 688, our Supreme Court noted the importance of recognizing the dominant purpose expressed in a charitable instrument. The court also noted that “[ejquity will not permit a valid trust to be destroyed” and a “trust cannot fail for lack of a trustee.” Id., 682-83.

In this case, the primary intent of the Beardsley deeds was to create a park. A review of the deeds indicates that one of the ways that Beardsley sought to ensure that the property remained a park was to prohibit Bridgeport from transferring the property. In view of the trial court’s factual finding that Bridgeport has serious financial problems that risk the preservation of the parks, a holding that preserves the deeds’ secondary purpose of prohibiting Bridgeport’s ability to transfer the property would destroy Beardsley’s intent of maintaining the property as a park. This court, therefore, concludes that the trial court, in the exercise of its equitable powers, should have applied the doctrine of deviation in order to preserve Beardsley’s primary intent of maintaining the property as a park. Accordingly, we conclude that the Beardsley deeds created an interest to which the doctrine of deviation should be applied and that the doctrine of deviation should be applied to the Beardsley deeds in accordance with the proposal of the parties.

The final issue before this court is whether the trial court improperly failed to apply the doctrine of deviation to the Rogers fund. The express purpose of the Rogers fund is “to augment, develop or increase the Zoo in the Parks of the City of Bridgeport.” The provision of the will creating the fund then identified “the Zoo” as the “Zoo at Beardsley Park.” The fund’s only purpose would be thwarted by the transfer of the zoo without the fund because the life of the Rogers fund depends on its use as a resource for the zoo in Beardsley Park. In view of this court’s holding with respect to the Beardsley deeds, we also conclude, consistent with the proposal of the parties, that the doctrine of deviation should be applied to the Rogers fund in order to preserve its purpose of maintaining the Beardsley Zoological Park.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the named plaintiff on all counts of the complaint.

In this opinion the other judges concurred.

       General Statutes § 3-125 provides in relevant part, that, the attorney general “shall represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes.” Blumenthal also asserts that in addition to his statutory authority he is acting pursuant to his common law authority to oversee gifts given for public; or charitable purposes.

       The parties submitted the proposal as a stipulated judgment. The stipulation is set forth in the record.

       The other conditions provide the following: “2nd, That upon the tracts named above, and that also conveyed to said City by said Beardsley by deed recorded in Bridgeport Land Records Vol 54 page 429 [1878 deed] the said City of Bridgeport shall expend Three Thousand Dollars ($3000) per annum during the next ten (10) years in laying out and improving the same as a public park, including a proper mapped layout for the improvement of said lands as a whole. 3rd, That in case at any time during said ten years, or during the life time of said grantor herein, he shall release to said City of Bridgeport his life use in the whole or any part of said tracts, the said City shall annually appropriate of Three Thousand Dollars, or of any larger sum which may be by said City appropriated to said Park, as the land so released bears to the whole tract herein conveyed in area.”

       See Hamden v. Rice, 24 Conn. 350, 355 (1856) (discussing history of charitable uses and trusts and attributing their origin to Statute of Elizabeth).


text:
    WINSTON CLARKE v. COMMISSIONER OF CORRECTION
    (14760)
    O’Connell, Lavery and Heiman, Js.
    Argued May 31
    officially released October 1, 1996

      James A. Shanley, Jr., special public defender, for the appellant (petitioner).

      Rita M. Shair, assistant state’s attorney, with whom were Michael Dea,rington, state’s attorney, Christopher Alexy, assistant state’s attorney, and, on the brief, James A. Killen, for the appellee (respondent).
   HEIMAN, J.

The petitioner appeals from the judgments of the habeas court dismissing his petitions for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court (1) applied an incorrect legal standard in evaluating his claim of actual innocence and (2) improperly dismissed his claim of ineffective assistance of counsel by incorrectly evaluating the credibility of a witness in the habeas proceedings. We affirm the judgments of the habeas court.

The following history of the case is necessary for a resolution of this appeal. The petitioner was convicted, after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent and of possession of a controlled substance with intent to sell. The petitioner received a total effective sentence of thirteen years in the custody of the commissioner of correction.

The jury could reasonably have found the following facts in support of the petitioner’s conviction. On April 5, 1989, Earl Noble was the owner of an automobile repair shop at the corner of Elliot and Davenport Streets in New Haven. Detective Vincent Raucci of the New Haven police department observed a white Plymouth with an out-of-state license plate parked on Elliot Street in front of Noble’s garage. Raucci recognized the person on the driver’s side of the Plymouth as the petitioner, whom he knew from the neighborhood. Raucci also knew that the petitioner had been involved in drug transactions.

Raucci noticed that a male and female were seated on the passenger side of the Plymouth. He observed the petitioner, who was wearing a black leather coat, leave the vehicle and enter the garage. Raucci was unable to determine whether the petitioner was carrying anything under the coat.

The petitioner entered the garage and, within a period of two minutes, came out and walked back to the car. As the petitioner approached the car, Raucci observed that the petitioner was carrying a small plastic bag containing a white substance. The petitioner displayed the bag and its contents to the passengers in the Plymouth. Raucci and his partner, Detective Robert Brooks, exited from their vehicle. The petitioner, upon seeing Raucci and Brooks, turned and began to walk rapidly toward the garage. Raucci called out to the petitioner, who responded by holding up a finger, as if to indicate that the detectives should wait a minute. The petitioner then ran into the garage. Raucci and Brooks proceeded to chase the petitioner.

Andrew Fowlin was in the garage when the petitioner entered. The petitioner asked Fowlin to hold two bags: a black leather bag and a plastic bag. Raucci and Brooks entered the garage. Fowlin dropped the leather bag to the floor and tucked the plastic bag into his pocket just as the officers entered the garage.

When the officers entered the garage, they observed the black leather bag on the floor between the petitioner and Fowlin. At the same time, the officers also observed the petitioner making a gesture with his hands toward Fowlin. Fowlin immediately gave the police the plastic bag and some cash, and stated that the petitioner had given those items to him. After examining the black leather bag, Raucci realized that he had seen the leather bag in the petitioner’s possession on a prior occasion when he had observed the petitioner and his son in an automobile. The police discovered over $5000, seven bags of marijuana and nine and one-half ounces of cocaine in the leather bag.

The petitioner absconded prior to the completion of his jury trial. He was convicted, arid he was sentenced by the trial court in absentia. An appeal taken in his behalf was dismissed because his whereabouts were unknown. See, e.g., State v. Leslie, 166 Conn. 393, 394-95, 349 A.2d 843 (1974).

The petitioner filed two separate petitions for writs of habeas corpus. The habeas court consolidated the petitions, and on November 8,1994, the petitioner filed a revised amended petition. In that petition, the petitioner asserted that he was (1) denied effective assistance of counsel, and (2) factually innocent. Following an evidentiary hearing before the habeas court, the court dismissed the petition in each file. This appeal follows.

I

The petitioner first asserts that the trial court applied an incorrect legal standard in deciding the petitioner’s claim of actual innocence. We conclude that the petitioner’s claim of actual innocence was insufficient to trigger an evaluation of it by the habeas court for the purpose of determining whether the petitioner had made a showing of actual innocence sufficient to warrant a new trial.

“We initially turn to our Supreme Court’s decision in Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), for enlightenment regarding substantial claims of actual innocence. In Summerville, the court held that ‘a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial.’ Id., 422. The court recognized that the standard of proof for such claims ‘should be more demanding than a probability of a different result.’ Id., 431. The probability of a different result is a component of the standard used to evaluate a petition for a new trial on the ground of newly discovered evidence. Taborsky v. State, 142 Conn. 619, 623, 116 A.2d 433 (1955) (standard for new trial primarily whether injustice done and whether probable that if new trial conducted, different result would be reached). The Summerville court concluded that such a standard did not fit the interests at stake in a habeas petition where the petitioner makes a substantial claim of actual innocence; Summerville v. Warden, supra, 431; but declined to specify which ‘more demanding’ legal standard or burden of proof for such a claim of actual innocence should govern. Id., 432-33.” Williams v. Commissioner of Correction, 41 Conn. App. 515, 523-24, 677 A.2d 1 (1996).

Here, the habeas court adopted the standard set out by Justice White in his concurring opinion in Herrera v. Collins, 506 U.S. 390, 429, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993). To be entitled to relief under that standard, a “petitioner would at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.” (Emphasis added; internal quotation marks omitted.) Id. (White J., concurring). The petitioner claims that the trial court should not have applied Justice White’s standard.

Although the Summerville court reviewed a number of standards, including the standard set forth by Justice White in Herrera,, the court declined to specify a legal standard for a claim of actual innocence. Summerville v. Warden, supra, 229 Conn. 432-36. The court declined to decide the legal standard issue because the court concluded that, under any of the standards it had reviewed, the evidence put forth by the petitioner “was insufficient to trigger an evaluation of it by the habeas court for the purpose of determining whether the petitioner had made a showing of actual innocence sufficient to require a new trial.” Id., 436-37.

In light of Summerville, this court has concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must, nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn. App. 527. We concluded that “a writ of habeas corpus cannot issue unless the petitioner first, demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.” (Emphasis added.) Id., 530. Moreover, “[w]e incorporate^] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner’s claim of actual innocence.” Id., 528. Thus, we held that “a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.” (Emphasis in original.) Id.

In examining the concept of due diligence, as that concept has been used in determining whether a new trial should be granted because of newly discovered evidence, we explained: “Due diligence does not require omniscience. . . . Due diligence means doing everything reasonable, not everything possible. . . . The petitioner for a new trial must be diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial will not be granted. . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 528-29.

Thus, we must first make a determination as to whether the petitioner’s claim of actual innocence is in fact predicated on newly discovered evidence, as that term has been defined in Williams. Id., 527.

Here, the evidence that the petitioner asserts supports his claim of actual innocence consists of the testimony of Noble. At the habeas hearing, Noble testified that he was working under a car when Fowlin came into the shop on the day of the petitioner’s arrest. Noble stated that Fowlin often stopped at the garage after school and was a suspected drug dealer. Noble claimed that he observed Fowlin wearing a black leather knapsack when he came into the garage. Noble asserted that he remained under the car that he was working on for about twenty-five minutes after Fowlin arrived and that Fowlin remained in the garage.

Noble asserted that he next heard noise and heard someone say, “Come out from under the car.” Noble testified that when he emerged from underneath the car, he saw three or four detectives, the petitioner and Fowlin. Noble said that an officer had the petitioner in custody near the door, that Fowlin was standing next to where Noble had rolled out from under the car, and that the officer standing next to the petitioner was holding the knapsack.

Noble testified that he gave the police permission to search the garage and that they opened the knapsack in front of him. He testified that when the officers turned over the knapsack and dumped its contents onto the ground, he observed money and drugs fall out of it. He asserted that he had not seen the petitioner with a bag. Noble testified that he knew the petitioner from the community and that he knew the petitioner’s son.

Noble testified that he was interviewed by two police officers and that he told them that he had never seen the petitioner with a bag. He also testified that he was not called as a witness at trial and that every November (the month in which the criminal trial took place) he went to Florida for several weeks to visit with his mother.

On cross-examination, Noble testified that from the time Fowlin came into the garage until the time the police entered the garage, he was under a vehicle installing a clutch. Noble said that he was under the car looking up at the bottom of the car. He conceded that from that vantage point, all he could see were Fowlin’s feet and ankles, not any activity at the front of the garage.

The petitioner also testified at the habeas proceeding. He testified that the night before his arrest he had contacted a member of Fowlin’s family for the purpose of purchasing two ounces of cocaine for a friend. He was told that he could have the cocaine the next day and that he should go to Noble’s garage about midday. The petitioner stated that he was not told whom he would meet or who would deliver the drugs. The petitioner asserted that he was not carrying a bag when he went to the garage but that Fowlin had a bag.

The petitioner claimed that he told his attorney about Noble and to contact him. The petitioner asserted that his attorney told him that the prosecutor had already contacted Noble and that Noble had told the prosecutor that he knew nothing of the events that occurred at his repair shop. The petitioner asserted that his lawyer did not contact Noble.

Attorney Brian Carlow also testified. He stated that he became a deputy assistant public defender in 1985 and was assigned to part A criminal in New Haven in November, 1988. He testified that he replaced the petitioner’s original public defender.

Carlow testified that when he was assigned to the petitioner’s defense, he first reviewed the entire file and filed discovery motions. He also stated that he interviewed the petitioner on many occasions prior to trial. Carlow testified that two witnesses were interviewed: Keisha Frederick, who was one of the passengers in the petitioner’s car, and Noble. Carlow stated that Noble was interviewed by telephone by Robert Sisson, an investigator employed by the office of the public defender.

Carlow testified that, on the basis of on the results of the interview of Noble, he concluded that Noble would testify that at the time of the incident in question (1) he was working under a car, (2) he did not notice when Fowlin came into the garage, (3) he did not notice when the petitioner came into the garage, (4) the first thing that he noticed was when the police came into the garage, and (5) he did not know who had brought the black bag into the garage. Carlow claimed that, as a result of the interview, he determined that he would not use Noble as a defense witness at trial because he would not be helpful. Carlow testified that the decision not to call Noble as a witness was a tactical decision.

Carlow claimed that as a precautionary measure, he attempted to serve Noble with a subpoena at the time of trial. Carlow asserted, however, that he was unable to make in-hand service and that the person making service left a copy of the subpoena at the address that Noble had given to the police. Moreover, Carlow stated that he did not believe that Noble would be of material assistance in the defense of the petitioner.

No evidence was produced at the habeas hearing that would have permitted the court properly to conclude that Noble’s testimony could not have been discovered as a result of due diligence. See Williams v. Commissioner of Correction, supra, 41 Conn. App. 529. The evidence showed that Noble was interviewed by a defense investigator prior to trial and that Noble could have been called as a defense witness by Carlow at trial. The evidence showed, however, that Carlow determined that Noble would not be a useful defense witness and that Noble should therefore not be called as a defense witness at trial. Had Noble been called to testify at trial, his version of the events in question would have been revealed at that time. The fact that Noble may have described the incident in question differently to the defense investigator than he did on direct examination at the habeas hearing does not mean that Noble’s testimony, regardless of its substance, could not have been discovered in the exercise of due diligence. We conclude, upon review of the evidence presented at the habeas hearing, that the petitioner failed to demonstrate that Noble’s testimony could not have been discovered by the exercise of due diligence, and, therefore, such evidence does not constitute newly discovered evidence. See id. Thus, “the petitioner’s claim of actual innocence is lacking the requisite predicate for evaluation under any legal standard and must fail. See Sum-merville v. Warden, supra, 229 Conn. 397.” Williams v. Commissioner of Correction, supra, 529.

Under the facts of this case, “it would be no more necessary for this court to answer the question left open in Summerville, namely, what is the appropriate standard for habeas courts to apply when evaluating a substantial claim of actual innocence, absent proof of an antecedent constitutional violation that affected the result of his criminal trial, than it was necessary for the Supreme Court in Summerville to establish such a standard. The Summerville court failed to reach the issue of which standard of proof to apply because under any of the various standards considered by the court, from the most stringent to the most relaxed, the petitioner’s evidence fell short of establishing that the writ of habeas corpus should be issued on the ground that the petitioner was actually innocent.” Id., 529-30. We fail to reach the issue as well. See id., 530.

Thus, because the petitioner failed to demonstrate before the habeas court that the evidence put forth in support of his claim of actual innocence is newly discovered, we conclude that the habeas court properly denied the petitioner’s writ of habeas corpus. See id. Our conclusion, however, is based on different grounds than that set out by the habeas court. We therefore do not adopt the legal standard employed by the habeas court in arriving at its result, although we affirm the result. See id.

II

The petitioner next asserts that the habeas court improperly dismissed his claim of ineffective assistance of counsel by incorrectly evaluating the credibility of Noble. The petitioner argues that, on the basis of Noble’s habeas testimony, the habeas court should have determined that Carlow’s trial tactics concerning Noble constituted ineffective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We are unpersuaded.

The petitioner claimed before the habeas court that he was rendered ineffective assistance of counsel due to Carlow’s failure to conduct an adequate pretrial investigation regarding Noble’s knowledge of the incident in question and his failure to call Noble as a witness at trial. The habeas court heard testimony from the petitioner, Carlow and Noble, and evaluated the petitioner’s claims of ineffective assistance of counsel under the proper two-pronged analysis set forth by the United States Supreme Court in Strickland v. Washington, supra, 466 U.S. 668. “Under Strickland, the petitioner must show that (1) defense counsel’s performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; id., 687-88; and (2) but for counsel’s substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id., 694.” Williams v. Commissioner of Correction, supra, 41 Conn. App. 518. The habeas court determined that Carlow’s investigation of Noble’s knowledge of the incident and his decision not to call Noble as a witness fell within the wide range of competent representation expected of a criminal defense attorney.

The habeas court’s determination as to whether the petitioner’s constitutional right to effective assistance of counsel has been violated is subject to plenary review by this court. Evans v. Commissioner of Correction, 37 Conn. App. 672, 679, 657 A.2d 1115, cert. denied, 234 Conn. 912, 660 A.2d 354 (1995). We thus examine the conclusions of the court in light of the testimony and record before it. The testimony of Carlow revealed that an investigator, on Carlow’s behalf, had conducted an investigation into Noble’s knowledge of the incident in question. On the basis of that investigation, Carlow concluded that Noble’s testimony would not be helpful to the petitioner because Noble claimed not to have seen the incident. Moreover, Carlow’s testimony as to Noble’s recollection of the incident was confirmed by the petitioner’s testimony that the state had also interviewed Noble and determined that Noble’s recollection would not yield any useful information. Thus, the habeas testimony revealed that Carlow investigated Noble’s knowledge of the incident and made a tactical decision not to call Noble as a witness at trial based on that investigation.

“ ‘In a case that is tried to the court, such as the present case, the judge is the sole arbiter of the credibility of witnesses, and the weight to be given to their specific testimony.’ ” Williams v. Commissioner of Correction, supra, 41 Conn. App. 522. The habeas court evaluated all of the testimony before it and determined that “[t]he petitioner has failed to meet his burden of proving that Attorney Carlow’s performance fell below an objective standard of reasonableness.” We agree with that determination. Carlow’s decision not to call Noble was a professional judgment made after a proper investigation and with a thorough understanding of the petitioner’s claims and the existing evidence. His decision not to call Noble as a witness at trial fell into the category of trial strategy or judgment calls that we have, for a long time, declined to second guess. Davis v. Warden, 32 Conn. App. 296, 305, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993).

Thus, on the basis of our review of the habeas transcript and the entire record, we conclude that the habeas court correctly determined that the performance of Carlow fell within the wide range of competence expected of attorneys with ordinary training and skill in criminal law, and that the court properly found that the petitioner was not deprived of his constitutionally mandated right to effective assistance of counsel.

The judgments are affirmed.

In this opinion the other judges concurred.

       The habeas court, pursuant to the provisions of General Statutes § 52-470 (b), certified that a question was involved in its decision that ought to be reviewed by an appellate court.

       In his amended petition, the petitioner asserted that he was “factually innocent.'' On appeal to this court, he indicates that his claim in the habeas court was one of “actual innocence.” Although the term “actual innocence” does not appear in the amended petition, we nonetheless view the petitioner's claim as one of actual innocence and attach no significance to the slightly different terminology that he used in his amended petition. See Williams v. Commissioner of Correction, 41 Conn. App. 515, 523 n.3, 677 A.2d 1 (1996).

       We may affirm a trial court’s result on different grounds if the same result is required by law. Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992).