State v. Vasquez

733 A.2d 856, 53 Conn. App. 661, 1999 Conn. App. LEXIS 234
CourtConnecticut Appellate Court
DecidedJune 8, 1999
DocketAC 17951
StatusPublished
Cited by7 cases

This text of 733 A.2d 856 (State v. Vasquez) 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. Vasquez, 733 A.2d 856, 53 Conn. App. 661, 1999 Conn. App. LEXIS 234 (Colo. Ct. App. 1999).

Opinion

Opinion

FOTI, J.

The defendant, John Vasquez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 2 la-279 (a), sale of narcotics in violation of General Statutes § 21a-277 (a),1 and sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b).2

[663]*663The defendant claims that (1) there was insufficient evidence to support his conviction, (2) his conviction of possession of narcotics and sale of narcotics were unconstitutional both in placing a burden on him to prove an affirmative defense of drug dependency and in violation of his constitutional right against double jeopardy3 and (3) the trial court abused its discretion in failing to consider whether the defendant was drug-dependent when it sentenced him.4 We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On January 11,1995, at approximately 3 p.m., law enforcement officers were conducting an undercover narcotics investigation in the Newhallville section of New Haven. Detective Michael Henry drove down Starr Street toward Winchester Avenue seeking to purchase narcotics. He observed two black men, stopped his vehicle and indicated that he wanted to purchase “two pieces” of cocaine. One of the two approached Henry and handed him one piece of cocaine in a plastic bag. Henry gave the man $20. This man wore a black coat, light colored jeans, an unusually wide belt and a dark colored hat. Henry told the man that he wanted two pieces. The seller stated that he did not have any more and gave Henry $10 in change. Henry then left the area and broadcast a description of the seller. Henry drove to a prearranged location where he met with other police officers. The contents of the bag field-tested positive for cocaine in salt form, totaling 0.22 grams.

[664]*664Within minutes of Henry’s radio transmission of the seller’s description, Karen Hale, a New Haven police officer, and her partner proceeded to the area where she observed the defendant, who fit the description given by Henry, standing in front of the same building where the sale had taken place. She knew the man from prior incidents and identified him as the defendant. Hale thereafter prepared a photographic array consisting of pictures of eight men with similar features, one of whom was the defendant. Henry immediately identified the defendant’s photograph as being that of the person who had sold him the narcotics. A videotape, approximately thirty minutes in length, of the transaction between Henry and the defendant, which showed the activity in the area before and after the narcotics transaction, and focused on the defendant, was also admitted as evidence.

I

The defendant claims that there was insufficient evidence of the identity of the seller from which the jury could convict him. He claims that Hale’s testimony is not credible because she testified that the defendant was standing alone when she saw him, yet the videotape shows another man wearing a bright red jacket.

“In reviewing a sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not [665]*665required to draw only those inferences consistent with innocence.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” Id., 134.

The issue of identification is a question of fact to be resolved by the jury. State v. Rivera, 32 Conn. App. 193, 202, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993). Identification may be shown by circumstantial as well as by direct evidence. State v. Sparks, 39 Conn. App. 502, 515, 664 A.2d 1185 (1995). Moreover, “[i]n considering the evidence introduced in a case, [jJuries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id., 517; see also State v. Riccio, 41 Conn. App. 847, 852, 678 A.2d 981, cert. denied, 239 Conn. 908, 682 A.2d 1011 (1996).

The evidence presented to the jury, which it obviously accepted as credible, was that Hemy positively identified the photograph of the defendant as that of the man who had sold him the narcotics, made an in-court identification of the defendant and testified that he was absolutely positive that the defendant was the man who had sold him the narcotics. The jury has the sole and absolute responsibility to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992). Even if the jury had not considered Hale’s testimony to be credible, the evidence was still clearly sufficient as to identification, based solely on [666]*666Henry’s testimony. We conclude that the jury had sufficient evidence to identify the defendant as the seller of the narcotics.

II

The defendant next claims that his constitutional rights were violated in that the state’s burden of proof was diluted by the fact that he bore the burden of showing that he was drug-dependent and that his conviction for both possession and sale of narcotics violated the prohibition against double jeopardy. We are not persuaded.

A

The defendant argues that he had to testify to persuade the jury of his drug dependency. The defendant claims that by so doing he had to admit impliedly to the illegal possession of narcotics, thereby effectively diluting the state’s burden of proof on the possession charge.

“The design and effect of § 21a-278 (b) is to punish persons who are not drug-dependent and sell narcotics more severely than drug-dependent persons who sell narcotics. The legislature accomplishes that goal by providing for a five year mandatory minimum sentence for those convicted under § 21a-278 (b). A drug-dependent person can escape liability under § 21a-278 (b), and thus the five year mandatory minimum sentence, by proving that he was drug-dependent at the time of the offense.

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Cite This Page — Counsel Stack

Bluebook (online)
733 A.2d 856, 53 Conn. App. 661, 1999 Conn. App. LEXIS 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vasquez-connappct-1999.