State v. Vilalastra

521 A.2d 170, 9 Conn. App. 667, 1987 Conn. App. LEXIS 829
CourtConnecticut Appellate Court
DecidedFebruary 17, 1987
Docket3726
StatusPublished
Cited by10 cases

This text of 521 A.2d 170 (State v. Vilalastra) 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. Vilalastra, 521 A.2d 170, 9 Conn. App. 667, 1987 Conn. App. LEXIS 829 (Colo. Ct. App. 1987).

Opinion

Bieluch, J.

The defendant appeals from his judgment of conviction rendered in accordance with the jury verdict of guilty on the following counts: possession of cocaine with intent to sell or dispense, a violation of General Statutes § 21a-277 (a); possession of marihuana, a violation of General Statutes § 21a-279 (c); possession of cocaine, a violation of General Statutes § 21a-279 (a);1 and possession of drug paraphernalia, a violation of General Statutes § 2 la-267 (a). The defendant claims that the trial court erred (1) in denying the defendant’s motion to suppress evidence seized pursuant to a search warrant which contained an allegedly inadequate description of the premises to be searched, (2) in finding that the evidence presented was sufficient to establish beyond a reasonable doubt that the defendant had constructively possessed the articles which were seized during the search of the apartment, (3) in instructing the jury that the testimony of the defendant’s girlfriend would have been unfavorable to him if she had testified, and (4) in admitting the opinion testimony of two police officers on the issue of the defendant’s intent to sell narcotics.

The jury could reasonably have found the following facts: On December 16, 1983, officers of the Bridgeport police department executed a search warrant for the defendant’s person and his residence. The residence was described in the search warrant as “[t]he first floor [669]*669apartment front located in a yellow wood frame multifamily dwelling house with brick front, located at 139 Asylum St., Bpt., Conn.” Pursuant to the search warrant, the police stopped and searched the defendant as he was exiting from his garage on the premises. As a result of the search of the defendant’s person, the police discovered a quantity of plant-like material, later identified as marihuana, and a tin foil packet containing white powder in a cigarette package taken from his pocket. This white powder was later found to be cocaine.

After the search of the defendant, the police accompanied him to his apartment, gaining entry by using the defendant’s keys. Once inside, they encountered a woman later identified as Carmen Matos. She was the defendant’s girlfriend. She leased the apartment which they had shared since June, 1981, when he moved in after meeting her at his place of employment. Pursuant to the search warrant, the police conducted a search of the apartment in the presence of its occupants.

Detective James Honis, of the Bridgeport police department special services division, testified that his search of the bedroom uncovered a brown pouch in the headboard of the bed. The pouch contained eight small bags of white powder, which was later established to be cocaine. The search of a small sitting room uncovered a black plastic grinder and a spoon, both having traces of cocaine. A brown bottle labeled “Lactose,” containing white powder and traces of cocaine, was found in the same area. Six photographs with traces of cocaine, a box of plastic bags, a box of aluminum foil and $801 in cash were also discovered. The cocaine was 83 percent pure and its total weight was ninety-four hundredths of an ounce.

Honis testified, without objection, that, on the basis of his training and experience, the spoon was used for [670]*670snorting cocaine. He also testified, this time over the defendant’s objection, that the grinder was used for grinding hard cocaine and mixing cocaine with lactose, a cutting or diluting agent. The defendant again objected when Honis testified that it was his opinion, on the basis of his training and experience, that possession of the grinder, the bottle of lactose and the spoon indicates that a person is in the business of cutting and packaging cocaine or some other narcotic. He also testified that the cocaine, which was 83 percent pure, would be cut and “knocked down” to a lesser purity.

Detective Paul Lengyel, of the Bridgeport police department special services division, also testified concerning his opinion on the defendant’s intent to sell the cocaine. Over the defendant’s objection he was asked whether, in his opinion based upon his training and experience, all of the items found in the defendant’s apartment and introduced into evidence were possessed with the intent to sell or dispense cocaine or possessed for the defendant’s personal use of the narcotic. The witness stated that it was his opinion that these items would be used for the sale of cocaine, and not for personal use. He explained that one does not need a grinder or lactose for personal consumption. If a person were buying for his own personal use, it would already be cut. He also indicated that the purity of the cocaine, 83 percent, meant to him that it was intended for distribution.

The defendant testified on his own behalf. He admitted living at 139 Asylum Street with Carmen Matos for two and one-half years before his arrest. Although they were not married, he called Matos his “wife.” He admitted possessing the marihuana found on his person, but denied all knowledge of the cocaine which the police found on his person and in the apartment. He admitted sharing the bedroom with Matos, including [671]*671the bed and headboard where the eight bags of cocaine were found, but maintained, however, that they did not go into each other’s personal belongings.

Matos was not called to testify for the state because its efforts to have her served with a subpoena were unsuccessful. During its instructions to the jury, the trial court gave the following charge: “The defendant testified that he lived with Carmen Matos. She did not testify in the case. It is true that when a party fails to call to the stand a witness who if so called to testify, to any material fact, or where such witness would naturally be produced by such party, you are entitled to infer that had she testified, that the testimony would be unfavorable to the accused. . . . [T]he conditions must be met here before you may draw an inference. A witness who would naturally be produced [by] a party is one who is known to the party and who, by reason of his relationship to that party or the issues or both, would reasonably have been expected to have peculiar or superior information material to the case which, if favorable, the party would have produced. She must also have been available within the jurisdiction and more naturally have been produced by the party against whom you are asked to draw such an inference. Again you may draw such an inference if you are satisfied of the basis. . . . You may or may not draw such an inference.” The defendant excepted to this charge.

The jury returned a verdict of guilty on all four counts in the substituted information. The defendant was sentenced to an effective term of five years.

I

The defendant’s first claim is that the trial court erred in denying the defendant’s motion to suppress all evidence seized pursuant to the search warrant. The defendant alleges that the search warrant did not describe the place to be searched with adequate par[672]*672ticularity. See State v. Abbott, 5 Conn. App. 441, 447, 499 A.2d 437 (1985). This allegation, however, is not substantiated by the record. “We recognize the requirement of the fourth amendment as precluding the issuance of a search warrant that does not adequately describe the premises to be searched. However, ‘if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended’ this mandate is satisfied. Steele v.

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State v. Vilalastra
525 A.2d 521 (Supreme Court of Connecticut, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
521 A.2d 170, 9 Conn. App. 667, 1987 Conn. App. LEXIS 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vilalastra-connappct-1987.