State v. Marino

580 A.2d 990, 23 Conn. App. 392, 1990 Conn. App. LEXIS 342
CourtConnecticut Appellate Court
DecidedAugust 13, 1990
Docket7591
StatusPublished
Cited by5 cases

This text of 580 A.2d 990 (State v. Marino) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Marino, 580 A.2d 990, 23 Conn. App. 392, 1990 Conn. App. LEXIS 342 (Colo. Ct. App. 1990).

Opinion

Per Curiam.

The defendant appeals from the judgment of conviction, after a jury trial, of the sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court improperly (1) denied his pretrial motion for a continuance, (2) instructed the jury on the issue of entrapment, (3) sustained a state witness’s claim of attorney-client privilege, and (4) permitted the state’s attorney to cross-examine a defense witness about his prior guilty plea.

The following facts are relevant to the disposition of the defendant’s appeal. In July, 1987, Laurel Morey was driven to the defendant’s house at 10 Riverside Drive, Portland, by her cousin, Robin Solis. The two women entered the defendant’s house and proceeded to the living room where they met the defendant. After some limited conversation, the defendant produced a plate with cocaine on it, and cut the cocaine into three lines with a razor. The defendant passed the plate and a metal tube around the room, and Morey, Solis and the defendant each inhaled the cocaine on the plate. At some time within the next hour, the defendant again cut three lines of cocaine and the three again inhaled the narcotic substance.

On August 12,1987, a Guilford police detective, acting as an undercover agent for the statewide narcotics task force, met with Rosario Aresco and bought one-eighth ounce of cocaine from him. After the sale, Aresco asked the detective to drive him to 10 Riverside Drive, and she complied. They stopped in front of the house for a few seconds and then, at Aresco’s direction, they drove to a restaurant about one block away. Aresco went into the restaurant and made a telephone [394]*394call. He returned to the detective’s car and asked her to bring him back to the Riverside Drive house. The pair returned to, and entered, the house. Once inside, Aresco introduced the detective to the defendant. After a short time, the defendant placed some cocaine in a bowl and passed the bowl to Aresco. Aresco asked the detective to put the one-eighth ounce she had just purchased from him into the bowl. The detective obliged. Aresco consumed some of the cocaine, but the detective declined and left the premises, explaining that she had to go to work.

On September 19, 1987, the detective and other members of the task force were directed to attempt to purchase more cocaine from Aresco. When the detective discovered that Aresco was not home, the defendant became the target of the task force’s investigation. She went to 10 Riverside Drive at about 6:30 p.m. and explained that she could not find Aresco, but wanted to buy some cocaine. The defendant invited her in and produced four packets of cocaine that he sold to her for $200. He told her that he did not like taking Aresco’s customers away from him, but that if she needed anything more she could return to his home.

On November 24,1987, the defendant was arrested. When the defendant was told that he was under arrest, he asked: “For the stuff I sold this morning?”

I

On September 23,1988, the defendant filed a motion for a continuance requesting that the trial be postponed until such time as the state made full disclosure of any and all information concerning his case that was gathered from wiretaps in an ongoing, broader, narcotics investigation.1 The defendant now claims that the trial court improperly denied this pretrial motion.

[395]*395The defendant claims that the testimony that was given by a police officer at the hearing on his motion for continuance was false and its admission violated the principles set forth in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,10 L. Ed. 2d 215 (1963), and denied him due process. This claim relates to the defendant’s assertion of a defense of entrapment.

The defendant’s argument is based upon the premise that if the state’s decision to attempt to buy drugs from him on September 19,1987, arose out of the content of an interception by wiretap of a September 17, 1987 conversation he had with another person, that fact would have tended to establish his .defense of entrapment. If that were the case, he argues, he was improperly denied the opportunity, because of the officer’s incorrect testimony regarding the date of the translation of the conversation, of establishing that the buy from him on September 19 was prompted, not by his conduct in August and by his reputation with the police as a narcotics trafficker, as the state claimed, but by the overheard telephone conversation on September 17. If the conversation prompted the controlled buy, he claims that would be entrapment.

The officer in question testified that the police had a wiretap of a telephone conversation between the defendant and another, dated September 17,1987, and that the conversation had been translated from Italian to English on September 28, 1987, when, in fact, this conversation had been translated on September 18,1987.2 The trial court denied the continuance sought [396]*396by the defendant because the translation had not occurred until after the September 19 buy from the defendant.

The correct date of the translation does not aid the defendant in his defense of entrapment. General Statutes § 53a-15 provides that “[i]n any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant . . . for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct.” See also State v. Grant, 8 Conn. App 158,164, 511 A.2d 369 (1986). “ ‘ “[I]f the criminal intent or the willing disposition to commit the crime originates in the mind of the accused and the criminal offense is completed, the fact that the opportunity is furnished or the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him for it constitutes no defense. On the other hand, if the evil intent and criminal design originate in the mind of the government agent and the accused is lured into the commission of the offense charged in order to prosecute him for it, when he would not have committed an offense of that general character except for the urging of the agent, no conviction may be had.” ’ ” State v. McNally, 173 Conn. 197, 201, 377 A.2d 286 (1977).

It is difficult to conclude that any misstatement of the date of the translation3 resulted in a denial of the [397]*397defendant’s ability to mount a defense, or that there was any reasonable probability that the result of the trial would have been different had the correct date of the translation been known. See State v. Pollitt, 205 Conn. 132, 141, 531 A.2d 125 (1987).

The trial in this case began on October 13, 1988, at which time the defendant was aware of the translation, regardless of whether it was made on September 18, 1987, or on September 28, 1987. He, thus, could have specifically requested a copy of the translation. The state also offered to allow the defendant to listen to the tape.

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Related

State v. Wilder
17 A.3d 1116 (Connecticut Appellate Court, 2011)
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941 A.2d 946 (Connecticut Appellate Court, 2008)
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State v. Lee
620 A.2d 1303 (Connecticut Appellate Court, 1993)
State v. Marino
580 A.2d 63 (Supreme Court of Connecticut, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
580 A.2d 990, 23 Conn. App. 392, 1990 Conn. App. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marino-connappct-1990.