State v. Spivey

736 A.2d 153, 53 Conn. App. 652, 1999 Conn. App. LEXIS 225
CourtConnecticut Appellate Court
DecidedJune 8, 1999
DocketAC 18028
StatusPublished
Cited by3 cases

This text of 736 A.2d 153 (State v. Spivey) 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. Spivey, 736 A.2d 153, 53 Conn. App. 652, 1999 Conn. App. LEXIS 225 (Colo. Ct. App. 1999).

Opinion

Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered following a jury trial, of three counts of sale of a narcotic substance by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and three counts of sale of a controlled substance within 1500 feet of a school in violation of General Statutes § 21a-278a (b). The defendant claims that the trial court improperly (1) admitted hearsay evidence, (2) instructed the jury on the state’s burden of proof and (3) admitted evidence of uncharged misconduct. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. Officer Richard Batts of the Middletown police department was an undercover officer in a sting operation aimed at apprehending local drug dealers. Batts wore a body wire that allowed his backups, Sergeant Frank Violissi and Officer Jack Harris, to monitor his transactions; the monitoring device, however, did not record any conversations.

Batts purchased drugs from the defendant on four separate occasions, each time approaching the defendant and asking him for a “twenty.” The defendant would leave, return minutes later and hand Batts a package. Immediately after the first narcotics purchase, Batts met Violissi and Harris and identified the defendant from an array of photographs. Soon thereafter, Harris field-tested the substance Batts purchased, which proved to be cocaine. Each subsequent purchase also proved to be cocaine. On one occasion, the defendant told Batts that he “would be selling all night and that if Batts came back later, he would give him a [654]*654bigger piece.” Both Violissi and Harris identified the defendant’s voice as that of the drug dealer and testified to the nature of the conversations they heard over the wire.

I

The defendant claims that the trial court abused its discretion by allowing Violissi and Harris to testify concerning the conversations they heard on the monitoring device. He contends that these conversations do not fall under the hearsay exception for admissions of a party opponent. We do not agree.

“ ‘The words and acts of a party-opponent are generally admissible against him [or her] under the admission exception.’ ” Willow Funding Co., L.P. v. Grencom Associates, 246 Conn. 615, 620, 717 A.2d 1211 (1998). “Under the admissions of a party opponent exception to the hearsay rule, evidence must be offered against the party that made the admission.” Martins v. Connecticut Light & Power Co., 35 Conn. App. 212, 228, 645 A.2d 557, cert. denied, 231 Conn. 915, 648 A.2d 154 (1994).

Violissi and Harris both heard the defendant offer to sell drugs to Batts. Violissi heard the defendant say that he would be receiving a shipment of crack cocaine between 9 and 10 p.m. that evening. Moreover, Violissi heard the defendant negotiate the sale of an “8-ball” of cocaine for $170 and that the defendant said that he would be selling until 5 a.m. This is clearly an admission, admissible under the hearsay exception. “An admission, as applied to criminal cases, is the avowal or acknowledgment of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt.” (Emphasis in original; internal quotation marks omitted.) State v. Stepney, 191 Conn. 233, 250, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

[655]*655These statements are relevant and material to the issues because the jury reasonably may have inferred from their content that they manifested the defendant’s conscious and continuing resolve to sell drugs. It is reasonable to conclude that the jury would find these statements highly probative because they tended to show the defendant’s intent and motive at the time of the drug sales. “The trial court’s discretionary determination that the probative value of evidence is not outweighed by its prejudicial effect will not be disturbed on appeal unless a clear abuse of discretion is shown.” State v. Joly, 219 Conn. 234, 253, 593 A.2d 96 (1991).

In light of these facts, we conclude that the trial court did not abuse its discretion in admitting the officers’ testimony under the admission of a party opponent exception to the hearsay rule.

II

The defendant next argues that the trial court’s instructions improperly shifted the burden of proof to the defendant and that the trial court failed to instruct the jury or give a limiting instruction. We do not agree.

“It is well established that [a] 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.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998).

[656]*656The defendant claims that one sentence in the jury instruction shifted the burden of proof to the defendant.1 When the charge is read in its entirety, the instruction clearly shows that the trial court unequivocally stated that the state has the burden of proof. The defendant is attempting to isolate one sentence in the charge. Our review of the charge as a whole shows that there was no ambiguity in the fact that the jury was instructed that the state had to prove each element beyond a reasonable doubt. The isolated misstatement was not significant enough to mislead the jury.

Ill

The defendant next claims that the trial court improperly admitted evidence of a prior incident of uncharged misconduct. Additional facts are necessary for the resolution of this issue. From December, 1995, through January, 1996, the defendant was involved in four drug transactions with Batts. The defendant, however, is charged only with the last three of these drug transactions. The defendant contends that the trial court improperly admitted evidence of the uncharged transaction.2

“ ‘[E]vidence of prior misconduct is not per se inadmissible. The trial court, in analyzing the admissibility of the evidence, must apply a two-prong test. First, the court must conclude that the offered evidence is relevant and material to one of the enumerated exceptions, e.g., motive, intent and identity. Second, the court [657]*657must conclude that the probative value of the evidence outweighs its inevitable prejudicial effect.’ ” State v. Lopez, 14 Conn. App. 536, 538-39, 541 A.2d 902 (1988).

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Related

Spivey v. Commissioner of Correction
832 A.2d 1204 (Connecticut Appellate Court, 2003)
State v. White
740 A.2d 399 (Connecticut Appellate Court, 1999)
State v. Spivey
738 A.2d 653 (Supreme Court of Connecticut, 1999)

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Bluebook (online)
736 A.2d 153, 53 Conn. App. 652, 1999 Conn. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spivey-connappct-1999.