State v. Lee

628 A.2d 1318, 32 Conn. App. 84, 1993 Conn. App. LEXIS 337
Connecticut Appellate Court·Decided July 20, 1993·No. 10836; 10837·Published·Cited by 30 cases

Opinion

Heiman, J.

The defendant appeals from judgments of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 2 la-278 (b) and improper use of a motor vehicle registration in violation of General Statutes § 14-147 (c) under one information, and of risk of injury to a child in violation of General Statutes § 53-21 and reckless endangerment in the first degree in violation of General Statutes § 53a-63 under a separate information. The jury acquitted him of criminal attempt to commit assault in the first degree and the lesser included offenses thereof.

On appeal, the defendant asserts that (1) the search of his car violated his state and federal constitutional rights to be free from unreasonable searches because (a) the actions of the Middletown police department constituted a search for fourth amendment purposes and (b) the search of his car did not fall within any of the recognized exceptions to the warrant requirement, (2) the narcotics that were found should have been excluded because the state failed to establish that the evidence was in an unchanged condition, (3) the state produced insufficient evidence to convict him under General Statutes § 21a-278 (b), (4) the trial court’s denial of his request to remove counsel and for a continuance denied him his due process rights, (5) the trial [87] court’s charge improperly highlighted the admission of a witness’ inconsistent statement thereby prejudicing the defendant, and (6) the trial court improperly consolidated for trial two informations filed against him and the resulting prejudice was beyond the curative power of the court’s instructions. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On May 5, 1989, at approximately noon, Aleta Renee Jenkins, who lived at 12 Roosevelt Drive in Mid-dletown, was walking home from her girl friend’s house. She saw her nine year old daughter across the street, waited until the daughter crossed the street and the two proceeded to their front door. At that moment, the defendant came out of the residence at 6 Roosevelt Drive. As Jenkins turned the doorknob to enter her house, she heard the defendant call her name.1 She turned and saw the defendant squatting. She saw a gun in his hand and realized that he was aiming it at her. She also noticed that the defendant’s cousin, Curtis Flood, was standing next to him. Jenkins grabbed her daughter who was standing behind her and ran into the house to hide. As she did this, she heard a gun shot. She testified that the defendant then got into his red Alfa Romeo Milano and drove away. Her daughter testified that she heard the defendant call her mother’s name and saw the defendant holding a gun. Scott Jenkins, Aleta Jenkins’ brother, who was inside the house at the time of the incident, also testified that he heard a shot and something hit the house.2

[88] During an investigation, Sergeant George Dingwell of the Middletown police found a copper coated lead bullet that was fired from a .38 caliber weapon lodged in the southwest corner of Jenkins’ house.

On May 10, 1989, Glen Partridge, a self-employed automobile recovery agent at Coastal Auto Recovery, received an assignment from his client, Ford Motor Company (Ford), to repossess the defendant’s 1988 silver four door Subaru GL. Ford supplied Partridge with the defendant’s two known addresses in Middletown, 226 Ridgefield Drive and 54 Roosevelt Drive.

At 5 a.m., Partridge and an assistant went to Mid-dletown to repossess the vehicle. As part of their normal course of business and out of courtesy, they notified the police of their intentions and showed the desk sergeant at the Middletown police department their order to repossess the vehicle. Partridge and his assistant then proceeded to the defendant’s Roosevelt Drive address because Ford had informed them that the defendant was living there. Donald Anderson, a Mid-dletown police officer, met Partridge and his assistant at the Roosevelt Drive address, where Partridge found the defendant’s car. Partridge observed identifying characteristics including the vehicle identification number using the information that Ford provided him. Partridge hooked up the vehicle to a wrecker and towed the car away from Roosevelt Drive.

As they left Roosevelt Drive, Anderson stopped Partridge. Anderson checked the license plate numbers with the department of motor vehicles and discovered that the plate number did not match the registration for that vehicle. He removed the plate and Partridge replaced it with a transport plate. Partridge then towed the vehicle to the Middletown police department to inventory its contents and to fill out a report describing the condition of the vehicle and its mileage. Par[89] tridge testified that his company and Ford require that he inventory repossessed vehicles to ensure that the consumer’s property is returned and that the vehicle does not contain any contraband or firearms. He also testified that he inventories the vehicle away from the location where he repossesses it to avoid breach of the peace. He further testified that he conducts an inventory of all of the vehicles he repossesses and that half of the time he conducts this inventory at the local police station.

While Partridge and his assistant gained entry to the locked passenger compartment of the vehicle and inventoried it, Anderson stood nearby. Anderson testified that he observed the inventory to ensure that if contraband were found he could preserve the chain of custody. He did not, participate, however, in the inventory process. Inside the Subaru, Partridge and his assistant found personal effects such as clothes, papers, a hard hat, a child’s toy and safety glasses. Partridge also opened and inventoried the trunk. He then picked the lock to the locked glove compartment. Inside that compartment, he found personal papers, papers dealing with the vehicle, pens, pencils, and a partially opened tinfoil package that he thought might be a brownie. He handed the package to Anderson who opened it. Anderson discovered that the package contained a white substance in rock form. On the basis of his training and experience, Anderson thought that the package contained narcotics.

During the trial, Flood testified that the defendant had the only key to the automobile. This key opened the car’s door, trunk and glove compartment, and started the ignition. While Flood testified that he often used the car for work and on weekends, he stated that he did so only with the defendant’s permission and had [90] to obtain the key from the defendant. He further testified that the narcotics found in the glove compartment were not his.

After a five day trial, in which two informations were consolidated, the jury found the defendant guilty of possession of narcotics with intent to sell, improper use of a motor vehicle registration, risk of injury to a child, and reckless endangerment. This appeal ensued.3

I

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State v. Lee, 628 A.2d 1318, 32 Conn. App. 84, 1993 Conn. App. LEXIS 337 (Colo. Ct. App. 1993).

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