23 Conn. App. 358 | Conn. App. Ct. | 1990
The defendant appeals from the judgment of conviction, after a jury trial, of three counts of selling cocaine in violation of General Statutes § 21a-278 (b). The defendant claims that the trial court should not have (1) admitted into evidence tapes and transcriptions of conversations between an informant now deceased and the defendant, (2) permitted improper expert testimony, and (3) allowed improper rebuttal testimony. We affirm the judgment of the trial court.
Macho went into a bar located on Main Street. During that time, he was outside the view of the surveillance team. He was next observed talking to the defendant, a Bridgeport police officer, in a parking lot adjacent to the bar. This conversation was monitored. Macho could be heard stating that he had $50 and the defendant said he would get it for him.
One-half hour later, the team monitored a conversation between Macho and the defendant on Water Street, that was around the corner from the bar. The defendant drove up in a car that he parked on Water Street and was observed passing something to Macho. This conversation was also monitored. Thereafter, Macho met with law enforcement officers who searched him and discovered only one aluminum foil packet. The contents were analyzed and determined to have a 100 percent cocaine base.
On April 28,1987, at 5 p.m., Macho met again with law enforcement officers at the DEA office in Bridgeport. Macho telephoned the defendant. This phone conversation was recorded. Macho said he would have “fifty” and the defendant indicated that he was working at Waldbaum’s at Park and North Avenues from
Macho was not given money. Instead, Agent William Kennedy remained nearby in a car, and held $50 to provide money to Macho if he agreed to sell drugs. Macho walked up to the defendant, who was in uniform, in the glass foyer of the store. After a conversation between the two, Macho returned to Kennedy’s car, presumably to get the $50, while the defendant left the parking lot and returned approximately one-half hour later. Macho then returned to the surveillance car and handed the agent in charge four vials. Macho was further searched at the DEA office and no additionalcontraband was found. Because the recording of the conversation between Macho and the defendant was somewhat defective, another buy was set up using the same scenario. Another recording device was placed on Macho. All left the DEA office on the day of that buy around 8 p.m. and headed to Waldbaum’s. At 8:55 p.m., the defendant’s vehicle was seen in the Waldbaum’s parking lot. Macho went to the defendant, who was still in uniform. Their conversation was again recorded. Macho returned to the car and gave Kennedy four vials. The vials were tested and found to contain 99 to 100 percent cocaine base. The defendant was subsequently arrested.
During the trial, after a hearing, the state introduced, over the defendant’s objection, redacted tapes and transcriptions of the taped conversations between Macho, who had died in November, 1987, and the defendant. The redacted tapes allegedly contained evidence of the defendant’s involvement in the sale of drugs. The state also introduced over the defendant’s objection, expert witnesses to explain the meaning of the slang expressions used in the conversations. The defendant was convicted and this appeal ensued.
The defendant first claims that the admission of the tapes and transcripts of conversations between himself and the deceased informant violated his right to confrontation under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution.
Where the hearsay declarant is not available for cross-examination, the United States Supreme Court “has, as a general matter only, required the prosecution to demonstrate both the unavailability of the declarant and the ‘indicia of reliability’ surrounding the out-of-court declaration. [Ohio v. Roberts, 448 U.S. 56, 65-66,100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)].” Bourjaily v. United States, 483 U.S. 171, 182, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987); State v. Maldonado, 13 Conn. App. 368, 375, 536 A.2d 600, cert. denied, 207 Conn. 808, 541 A.2d 1239 (1988). In Ohio v. Roberts, supra, 66, the United States Supreme Court deter
In the present case, both the defendant and the state agree that the informant’s statements are hearsay and that, if admissible at all, are admissible as adoptive admissions. We begin our analysis by holding that adoptive admissions are a firmly rooted hearsay exception and thus if the trial court did find that the informant’s statements were adoptive admissions, the statements were properly admitted.
“ ‘Where hearsay accusations are sought to be introduced as evidence against a defendant in a criminal proceeding on grounds that the hearsay was “adopted” by defendant as an admission of his guilt, the trial court must first determine that the asserted adoptive admission be manifested by conduct or statements which are unequivocal, positive, and definite in nature, clearly showing that in fact defendant intended to adopt the hearsay statements as his own.’ ” (Emphasis in original.) State v. Morrill, 197 Conn. 507, 537, 498 A.2d 76 (1985); see also State v. John, 210 Conn. 652, 682-83, 557 A.2d 93, cert. denied, 493 U.S. 824,110 S. Ct. 84, 107 L. Ed. 2d 50 (1989). The record demonstrates that, after an extensive hearing on a motion in limine filed by the defendant to exclude the use of the taped conversations and transcripts, the court stated in open court its reasons for admitting this evidence. Specifically, the court stated its basis for admitting the redacted statements of the informant as follows: “[T]he
The defendant argues that this statement by the court does not amount to a finding that they were adoptive admissions. The state argues that the court’s statements do constitute such a finding. We agree with the state and hold that the court’s finding did amount to a finding that the informant’s statements were admissible as adoptive admissions. Accordingly, because the statements in question were adoptive admissions, which is an established hearsay exception, the defendant’s right to confrontation was not violated.
II
The defendant’s second claim is that while various police officers testified as to their opinions concerning the terminology used in the conversations between Macho and the defendant, none of these opinions was based on reasonable probability. The defendant relies on Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977), which states: “An expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert’s opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible.”
The defendant contends that each expert in his testimony must employ the “magic words” that his opinion is “reasonably probable.” We reject the proposition
Ill
The defendant’s final claim is that the trial court impermissibly permitted the state to offer in rebuttal the testimony of Agent Anibal Torres of the Federal Bureau of Alcohol, Tobacco and Firearms. Torres was permitted to testify concerning his attempts to purchase drugs from the defendant.
Rebuttal evidence is usually confined to testimony that is directed at refuting the evidence given by the defendant or is in general contradiction of the testimony given by the defendant. State v. Simino, 200 Conn. 113, 123, 509 A.2d 1039 (1986); State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); B. Holden & J. Daly, Connecticut Evidence (1988) § 11. The admission of rebuttal evidence is ordinarily within the
The judgment is affirmed.
“The Sixth Amendment’s Confrontation Clause, made applicable to the States through the Fourteenth Amendment; Pointer v. Texas, 380 U.S. 400, 403-405, [85 S. Ct. 1065, 13 L. Ed. 2d 923] (1965); Davis v. Alaska, 415 U.S. 308, 315, [94 S. Ct. 1105, 39 L. Ed. 2d 347] (1974), provides: ‘In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’ ” Ohio v. Roberts, 448 U.S. 56, 62-63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .” “[E]ach of these confrontation clauses affords the criminal defendant two types of protections: ‘the right physically to face those who testify against him, and the right to conduct cross-examination.’ ” State v. Jarzbek, 204 Conn. 683, 692, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061,108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). The first of these two protections is at issue in this case.
The defendant’s brief does not contain any objection or reference to the rebuttal testimony of Bert Lancia, Commander of the Bridgeport police detective division, who denied having a conversation with the defendant about a homicide and denied telling him to play along with Macho. Part of the defendant’s defense was that he was using Macho to ferret out information about wrongdoing in the Bridgeport police department.