State v. PardoState v. Pardo
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Thе defendant, Guillermo Pardo, was convicted by a jury of possession of narcotics with intent to sell, in violation of
The jury could reasonably have found the following facts. On December 17,1983, two Hartford рolice officers received information from an unidentified informer that a Hispanic male dressed in a tan jacket, jeans and a cаp was selling cocaine in foil packets at the corner of Nelson and Main Streets. Observing the scene from an abandoned building, the offiсers saw a man, later identified as the defendant, who fit the description. The *356officers watched the defendant engage in two separate transactions in which he transferred a foil packet in exchange for money to another person. As the officers approaсhed the defendant, they saw him remove four tinfoil packets and drop them on the ground. One of the officers arrested and immediately searched the defendant and found two squares of tinfoil and $173.00 upon his person. Subsequent laboratory tests disclosed that the tinfoil packets contained cocaine.
The defendant’s first claim of error alleges that he was entitled to a mistrial because of prosecutorial misconduсt. At trial, defense counsel sought to impress on the jury that the amount of cocaine allegedly contained in the tinfoil packets was toо small an amount to warrant prosecution for sale of narcotics. In his cross-examination of the state’s toxicologist, defense cоunsel succeeded in having that witness characterize four hundred milligrams, the amount of cocaine involved in this prosecution, as “essentially a garbage case.” Shortly thereafter, the state rested its case and the defendant, outside the presence of the jury, moved for a dirеcted verdict, arguing that “it’s a garbage case as the expert indicated.” Counsel for the state replied, “If it’s a garbage case, Mr. Friedlаnd can give his own children some cocaine. I will ask that the Motion be denied.” The trial court denied the defendant’s motion. After the jury had been brought back, defense counsel moved for a mistrial based on “[the prosecutor’s] comments [to] which I take offense, about those commеnts of my children using cocaine.” The court instructed the jury to disregard these remarks of defense counsel and advised the defense to proceed with its case.
It is fanciful to argue that these events entitled the defendant to a mistrial. Although the remark of the assistant state’s attorney was unprofessional and offensive, his conduct while the jury was absent could have *357had no impact whatsoever on the fairness of the defendant’s trial. But for the repetition of the prosecutor’s remark by defense counsel after the jury had returned, the jury would never have learned what had trаnspired. The defendant cannot claim a mistrial because of an error induced by his own counsel. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973). The trial court’s denial of the motion for mistriаl in these circumstances did not constitute an abuse of its discretion. State v. Gaston, 198 Conn. 490, 495-97, 503 A.2d 1157 (1986); State v. Fleming, 198 Conn. 255, 264-68, 502 A.2d 886 (1986); State v. Dolphin, 195 Conn. 444, 452-53, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Vass, 191 Conn. 604, 613, 469 A.2d 767 (1983); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982).
The defendant contends, in his second claim of error, that the trial court insuffiсiently replied to an interrogatory from the jury during its deliberations. The jury sent a note to the court asking: “We would like an indication whether the quantity has аny bearing on intent to sell according to the law.” The court replied by reading to the jury the relevant part of the governing statute,
The defendant also asserts, in his final claim of еrror, that he was denied effective assistance of counsel because his attorney was not permitted adequate time to prepare for trial. On the very day that the defendant’s case was scheduled for jury selection, the defendant discharged his prior counsel and retаined his present counsel. The jury was selected on that day, a Friday, and the case proceeded to trial the following Tuesday. The defеndant claims error in the trial court’s refusal of his request for a continuance. The defendant has not pressed, on appeal, a claim that the denial of his request for a continuance constituted an abuse of discretion by the trial court. See State v. Beckenbach, 198 Conn. 43, 47-52, 501 A.2d 752 (1985); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985); State v. Myers, 193 Conn. 457, 463-64, 479 A.2d 199 (1984); State v. Chairamonte, 189 Conn. 61, 65-66, 454 A.2d 272 (1983). Furthermore, defense counsel has pointed to no specific occurrence at the trial that furnishes evidence of the inadequacy of his representation of the defendant. As we have recently held in State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986), this kind of claim must be litigated, on a proper factual record, in a proceeding on a writ of habeas corpus.
There is no error.
Notes
“[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) Any person who possesses or hаs under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not mоre than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, mаy be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”
The trial court’s main instruction included the following passage: “Now, if you find that the defendant was in possession of cocaine then among the matters which you may consider in determining whether the defendant was in possession of the cocaine with intent to sell are the value of the drugs, the quantity of the drugs seized, also the presence or absence of evidence indicating that the defendant possessed the drugs for his own use. To draw *358such an inferencе and intention to sell is not only the privilege of the jury but also the duty of the jury provided, of course, the inference drawn is a reasonable and logical one.